High Court dismisses defendant's motion to strike out claim for psychiatric injury damages as jurisdiction exists.

THE HIGH COURT

[2026] IEHC 52 RECORD NO. 2023/1340P BETWEEN:

JILL ST JOHN HARRINGTON

PLAINTIFF -AND-

JAMES O’CONNOR

DEFENDANT

JUDGMENT of Mr. Justice Mark Heslin delivered on the 30th day of January 2026

Introduction

1. On 27 March 2023, the plaintiff issued a plenary summons, and on 4 April 2023, delivered a statement of claim, pleading a claim against the defendant concerning events of 5 October 2017.

The plaintiff’s claim

2. The plaintiff’s claim (per the general indorsement of claim in the plenary summons, and para. 6 of the statement of claim) is for:

“a. Damages for assault;

b. Damages for sexual assault;

c. Damages for trespass to the person;

d. Damages for personal injury;

e. Further or other relief;

f. Interest pursuant to Statute;

g. Costs”

The defendant’s motion

3. On 20 January 2026, this Court heard an application to stay or strike out the proceedings on a range of bases. The application was moved by Ms. Murphy BL, for the defendant, and opposed by Mr. Masterson BL, for the plaintiff. Both counsel provided me with detailed written submissions and both made oral submissions of clarity. I want to acknowledge their assistance.

4. Whilst the defendant’s motion, dated 8 July 2024, sought relief under a total of 10 headings,

(a) to (j), during the hearing the defendant’s counsel focused on the following: -

“(c) An order striking out these proceedings on the grounds of a want of jurisdiction of this Honourable Court to hear and determine the plaintiff’s claim for compensation for personal (in this case psychiatric) injuries by virtue of the plaintiff’s breaches and failures to comply with the:

(i) Personal Injuries Assessment Board Act 2003 (as amended) and in particular part 2 and

(ii) Civil Liability and Courts Act, 2004 (as amended) and in particular but not exclusively, sections 8 and 10

(d) An order striking out, or in the alternative, permanently staying these proceedings on the above grounds, which resulted in the plenary summons and statement of claim being invalidly and unlawfully issued and failing to confer jurisdiction upon this honourable court to hear and determine the plaintiff’s claim for compensation for personal (in this case psychiatric) injuries”

Chronology

5. Having carefully considered the affidavits and exhibits, the following ‘timeline’ emerges.

5 October 2017

6. A book-launch took place on 5 October 2017 in a certain hotel. The plaintiff claims that she was the victim of an assault, by the defendant, at that event. The defendant avers that he never, at any stage, inappropriately touched the plaintiff.

7. I want to make very clear at the outset that it is no function of this Court to engage in any way with the merits of the claim, and nothing in this decision is intended or should be interpreted otherwise.

6 April 2018

8. The plaintiff made a report and gave a statement to An Garda Siochana and, on 6 April 2018, the defendant was interviewed at a Garda Station.

5 October 2018

9. An investigation file was submitted to the Director of Public Prosecutions (“DPP”) on or about

5 October 2018.

10 December 2018

10. On 10 December 2018, the defendant’s solicitors were notified by An Garda Siochana that: “…the Office of the Director of Public Prosecutions have directed that no prosecution be instituted in relation to the allegations contained within the investigation file”.

15 February 2019

11. On 15 February 2019, the Office of the DPP acknowledged the plaintiff’s request for a review of the decision not to prosecute.

10 May 2019

12. On 10 May 2019, the plaintiff made a complaint to the Garda Siochana Ombudsman Commission (“GSOC”). The evidence does not specify the outcome of the complaint or when, or if, GSOC provided same.

April 2021

13. The evidence allows for findings that the plaintiff did not have an address for the defendant and, through her solicitors, made appropriate efforts to try and find his correct address. In April 2021, after post had been returned to the office of the plaintiff’s solicitor, a summons server provided an address for the defendant (see para. 14 of the first affidavit sworn by Mr. Deery, solicitor for the plaintiff).

27 February 2023

14. On or about 27 February 2023 the plaintiff made an application to the Personal Injuries Assessment Board (“PIAB” or the “Board” or the “Injuries Board”).

Wrong address

15. The address for the defendant, for the purpose of the PIAB application, was provided to the plaintiff’s solicitors by a “…process server, following early investigations into the defendant’s whereabouts” (see para. 5 of Mr. Deery’s first affidavit).

16. The defendant avers that he did not reside there and there is no evidence before me which would allow for a contrary finding. As a consequence, whilst meaningful and reasonable efforts were made, on behalf of the plaintiff, to find the defendant’s correct address (via a named summons server retained by the plaintiff’s solicitor) it would appear that the defendant was not, in fact, served with any documentation relating to the PIAB process.

1 March 2023

17. On 1 March 2023, PIAB issued an Authorisation under s.17 of the PIAB Acts 2003-2019, which confers on the Board the discretion not to make an assessment of a claim in certain circumstances, including (per s.17 (1) (b) (ii) (I)) “because of the particular complexity of the issues that would require to be addressed were an assessment of the relevant claim to be made…”. The said Authorisation states:

“Authorisation under Section 17 of the Personal Injuries Assessment Board Acts 2003 – 2019

Name of Claimant: Jill St John Harrington Name(s) of Respondent(s): James O’Connor Date of relevant claim: 05/10/2017

Jill St John Harrington is hereby authorised, pursuant to section 17 of the Personal Injuries Assessment Board Acts 2003 – 2019, to bring proceedings in respect of the relevant claim against the Respondent(s) named above.

Issued by the Board, on this day, 01 March 2023. Signed by (Director of Business Support Services)

Authorisation issued by the Personal Injuries Assessment Board

Claim Number: PL0227202304916”

The PIAB Authorisation

18. At the risk of stating the obvious, this Authorisation (i) correctly named the plaintiff; (ii) correctly named the defendant; (iii) correctly identified the date of the relevant claim; and (iv) explicitly authorised the plaintiff to bring proceedings against the defendant in respect of the relevant claim.

19. In view of the foregoing, it seems to me that the Authorisation was prima facie valid unless, for example, a successful application was made for judicial review of the Board’s decision to issue the Authorisation (and no such application has been made).

7 March 2023

20. By registered post, on 7 March 2023, PIAB sent the defendant a formal notice, dated 1 March 2023, which stated inter alia:

“The claim has been made by Jill St John Harrington… who intends to seek compensation from you for personal injury.

The claim was received by us on 27/02/2023 and, as required under section 13 of the personal injuries assessment Board act 2003, we attach a formal notice of the claim for your attention…

Having considered the application the Board, pursuant to section 17 of the personal injuries assessment Board act 2003, has decided that an authorisation should issue in view of the complexity of the medical issues to be addressed…

As the authorisation is issuing contemporaneously with service of the attached notice and the board has no involvement in the assessment of the claim, please note we are unable to provide you with copies of any medical reports submitted by the claimant. We have closed our file.” (emphasis added)

10 March 2023

21. The Board’s letter was returned, by An Post, marked “unknown at this address”, on 10 March 2023.

27 March 2023

22. The plaintiff issued a plenary summons, on 27 March 2023.

4 April 2023

23. The plaintiff’s statement of claim is dated 4 April 2023.

16 October 2023

24. The defendant, as a matter of fact, received the proceedings, on 16 October 2023. I say this given that a Mr. Fergus Nestor swore an affidavit, on 8 November 2024, averring inter alia that he was engaged by the plaintiff’s solicitors “…in or about March 2021 to ascertain the address of the defendant…” (para 2) and that he was engaged “…in or around the 4th April 2023…to serve High Court documents on behalf of the plaintiff herein on the defendant herein” (para. 3). His affidavit goes on to detail attempts to serve the defendant on 7 July; 22 August; and 16 October, 2023, at which point he gave the documents to the defendant’s son.

25. Whilst there would appear to be a dispute in relation to what was, or was not, agreed by the defendant’s son, the defendant, as a matter of fact fact, received a copy of the proceedings, given to his son, on 16 October 2023.

2 November 2023

26. On 2 November 2023, the defendant’s solicitors entered a ‘conditional’ appearance, stated to be “for the purposes of contesting jurisdiction under Article 24 of Council Regulation (EC) 44/2001” (“Art. 24”).

27. The defendant’s motion to dismiss does not rely on Art. 24 (which concerns a situation where the court of another EU Member State has jurisdiction). There is nothing in the evidence to suggest that Art. 24 has any relevance to the facts in this case. The defendant does not aver that he is domiciled outside of Ireland and there is nothing to indicate that any jurisdiction, other than Ireland, is the appropriate forum for determining this matter.

28. As counsel for the plaintiff points out, Order 12, rule 26 of the Rules of the Superior Courts (“RSC”) concern “Appearance” and provides:

“(1) a defendant who contests service on him or her of any summons or other originating document or notice of same, and who has not entered an appearance contesting jurisdiction may deliver to the Registrar of the central office and copy the plaintiff or other moving party a written notice, entitled as in the action, cause or matter concerned, stating that he or she contests the service of the summons or document or notice thereof.

(2) promptly after delivering any such notice, the defendant shall apply to the court by motion on notice to the plaintiff or other moving party for an order to set aside service, or to discharge the order authorising such service, without prejudice to the rights of the plaintiff or other moving party to apply to the court for an order deeming or declaring such service good and effective…” (emphasis added)

29. It is settled law that entry by a defendant of an appearance, in effect, ‘cures’ any prior defects in relation to service (See Lawless v. Beacon Hospital & Ors [2019] IECA 256, at para. 13, per Peart J). The defendant in this case chose not to challenge service by invoking the provisions of Ord. 12, r. 26. Furthermore, the sole condition in his appearance (relating to Art.24) has ‘fallen away’ and, therefore, his appearance to the plaintiff’s claim is unconditional.

30. In the manner examined, the defendant has, as a matter of fact, had a copy of the plaintiff’s proceedings since 16 October 2023. Furthermore, he has retained solicitors and counsel. Through them, he has brought the present application and has sworn two affidavits in which he addresses the pleas made by the plaintiff and refutes her account in the strongest and clearest of terms.

31. In these circumstances, there is simply no reality in the proposition that the defendant has not been served with these proceedings and that an order should be made “…striking out and dismissing the Plaintiff’s claim on the grounds that the Defendant has not been properly and validly served…” (relief (f) sought in the defendant’s motion).

32. Given the facts before me, I regard the defendant’s application to dismiss the within proceedings on the basis of an alleged failure to serve the defendant as being, with respect, misconceived. I now return to the ‘timeline’.

7 December 2023

33. On 7 December 2023, the defendant wrote to PIAB’s director of business support services stating inter alia: “I did not receive any notification from the personal injuries Board to the effect that a claim had been lodged…”; pointing out his correct address; and seeking information regarding what correspondence had been sent.

2 February 2024

34. In the absence of a response from PIAB, the defendant’s solicitors requested a prompt reply to the queries raised in the 7 December letter and confirmed an intention to make an application to this Court on the defendant’s behalf.

9 February 2024

35. By letter dated 9 February 2024, the director of business support services of the Injuries Resolution Board replied to the defendant’s solicitors stating inter alia:

“Please convey the Board’s apologies to your client for the failure to respond to his letter of the 7/12/23.

Please find attached formal notice that was issued to your client by registered post on 7/03/2023.

It was returned by an Post marked “unknown at this address” on the 10/3/23.

The Board wrote to the Claimant Solicitor on the 13/3/2023 advising them of that fact…”

36. Thus, as of February 2024, the plaintiff’s solicitors were aware of the fact that the defendant was unknown at the address employed by the plaintiff in the application to PIAB and were similarly aware that the defendant had no knowledge of the Authorisation. That said, it is perfectly clear from the evidence before me that the defendant entirely disputes the allegations made by the plaintiff. Thus, there is no question of the defendant having been denied the opportunity to address the plaintiff’s claim, via the PAIB process, even if he had received all correspondence from the PIAB/the plaintiff’s solicitors at the relevant time. I will return to this topic presently.

19 - 21 February 2024

37. The defendant’s solicitors wrote to PIAB, on 19 and 21 February 2024, requesting a copy of the plaintiff’s application “together with copies of the supporting documentation including the medical report”.

29 February 2024

38. By letter dated 29 February 2024, the Board wrote to the defendant’s solicitors enclosing a copy of the plaintiff’s application and stating, inter alia:

“As the Board has no involvement in the assessment of the claim, please note we are unable to provide you with copies of any medical reports submitted by the claimant”.

The PIAB Application

39. The copy PIAB Application confirms that it was submitted by the solicitors for the plaintiff, on her behalf. The Application (as received by the Board, on 27 February 2023 and provided to the defendant on 20 November 2024) contains inter alia the following:

“Accident details

Accident type Public liability

details of accident Other: assault, sexual assault, and trespass to the person

Date

5 October 2017

What were you doing at the time of the accident Recreation/hobby/leisure

Description On or about the 5th day of October 2017, the claimant was a lawful visitor to the [named] Hotel [named address] when the respondent unlawfully sexually assaulted her.

Location type Pub/restaurant/Hotel

Location [named]

Injury Details

Body Part Injured Other: Soft tissue

Other body part description Psychiatric injuries

Received medical attention Yes

Date medical attention was first sought O6 October 2017

Medical report

Uploaded medical report file Dr Connaughton report.pdf

I satisfied that the medical report you are attaching adequately describes your injury?

No

Do you suffer from any other relevant medical condition?

Yes

Other relevant medical condition Diagnosed anxiety and panic attacks in 2012

Have you suffered any injuries since the date of the accident Yes

Injuries since the date of the accident Suffering from long Covid symptoms following contracting Covid 19 in April 2021

Damages

Claiming medical expenses Undecided

Claiming loss of earnings yes

Still out of work Yes”

“Psychiatric Injuries”

40. It is clear from the foregoing that the nature of the injury for which the plaintiff seeks redress comprises personal injuries, in particular, what the plaintiff states to be “psychiatric injuries”.

12 March 2024

41. Returning to the ‘timeline’, on 12 March 2024, the plaintiff’s solicitors called for the filing of a Defence within 28 days, failing which a motion for judgment ‘in default’ would issue.

22 April 2024

42. The defendant issued the present motion, on 22 April 2024, seeking to dismiss the plaintiff’s claim on a range of grounds, including, delay and lack of jurisdiction. This motion was grounded on an affidavit sworn by the defendant, on 19 April 2024. The defendant’s application was served on the plaintiff’s solicitors, on 22 April 2024, by registered post.

15 October 2024

43. The plaintiff’s solicitor, Mr. Neil Deery, swore an affidavit in opposition to the present motion, on 15 October 2024. Much of its content concerns a dispute regarding service issues (including, whether or not the defendant’s son agreed to accept proceedings on his behalf). However, the plaintiff’s solicitor made inter alia averments in relation to what might be called the form; timing; and nature of the claim in the proceedings.

Form

44. As to form, the plaintiff’s solicitor averred (at para. 11):

“The plaintiff has elected plenary summons in this instance, not in an effort to ‘sidestep’ statutory processes or avoid swearing an affidavit of verification, but…she wishes for this case to be heard before a jury…” (emphasis added)

Timing

45. As regards the timing of the proceedings, he went on to aver (at para. 23):

“…the plaintiff awaited the outcome of the criminal complaint before addressing the possibility of a civil remedy”

Nature

46. With regard to the nature of the plaintiff’s claim, her solicitor averred (at paras. 17 and 20):

“I say that a general practitioners report was submitted to PIAB. A psychiatrist’s report will also be required and we advised PIAB of this fact I say and believe that PIAB/PIRB would not have issued an authorisation had they not been satisfied that the plaintiff had provided Form B medical evidence as part of her application…”

“… The plaintiff’s GP has identified a recognised psychiatric injury. Medical evidence will be updated in due course at the appropriate juncture”

Psychiatric injury

47. It is clear that, by means of the present proceedings, the plaintiff claims to have suffered personal injuries, specifically, “psychiatric injury” for which the plaintiff intends to proffer “medical evidence”, which “will be updated in due course” including “a psychiatrist’s report”.

Defendant’s denial of all allegations

48. At para. 54 of his grounding affidavit, the defendant averred that the plaintiff’s accusations are untrue; that he is disadvantaged by what he describes as the plaintiff’s delay and failure to comply with statutory provisions; and that the action had not been “validly mounted”. In response, the plaintiff’s solicitor averred, inter alia, that “… the truth of the plaintiff’s allegations will be a matter for sworn evidence” (para. 21).

8 November 2024

49. The defendant swore a replying affidavit, on 8 November 2024, making inter alia the following averments (at para. 4):

“… the plaintiff, by her decision to bring an action by plenary summons, has already avoided swearing an affidavit of verification. I say, given the nature of this application, which has the capacity to halt these proceedings, the failure of the plaintiff to contradict your deponent’s averments, or to swear a reply and place on oath that her claim and the contents of the pleadings are true, is remarkable and sufficient to justify the reliefs sought in this matter”

18 December 2024

50. On 18 December 2024, the plaintiff swore an affidavit. Whilst she chose not to make any specific averments in response to those of the defendant (sworn on 19 April and 8 November 2024, respectively) she referred to the plenary summons and statement of claim and averred (at para. 2):

“The assertions, allegations and information contained in the said plenary summons and statement of claim, which are within my own knowledge, are true. I say and believe that the assertions, allegations, and information contained in the said plenary summons and statement of claim, which are not within my knowledge, are true.”

4 February 2025

51. On 4 February 2025, the plaintiff’s solicitor swore a 2nd affidavit in which he made inter alia the following averments (at para. 3):

“I say and believe that the defendant has implied that the plaintiff has sought to avoid verifying her claim on affidavit and has proceeded by way of plenary summons and statement of claim in order to avoid swearing as to the veracity of what she alleges. Without prejudice to the submission that she is not required to do so, the plaintiff herein has sworn an affidavit of verification and identity refer thereto when produced.”

Dispute

52. In light of the foregoing, the state of the evidence before me is that serious allegations are made by the plaintiff who avers that they are true, whereas, in very trenchant terms, the defendant avers the opposite.

Substance

53. I emphasise, once more, that this Court is not in a position to express any view whatsoever on the substance or merits of the claim, other than to note that a dispute undoubtedly exists in relation to very serious allegations, made by the plaintiff, and emphatically rejected by the defendant.

Discussion

54. During the hearing, counsel for the defendant made certain oral submissions to the effect that the plaintiff’s claim is ‘statute barred’. However, following an interjection by counsel for the plaintiff, she immediately and very appropriately acknowledged that, in the present motion, the defendant does not contend that the plaintiff’s claim is ‘statute-barred’. Therefore, any argument that these proceedings were commenced outside the statutory limitations period forms no part of the present application. Thus, for the purpose of the present analysis, I must proceed on the basis that the proceedings were commenced within the relevant statute of limitations period.

55. Bearing that in mind, it seems to me that arguments based on alleged delay can be readily disposed of (see relief (h) in the defendant’s motion, wherein an order is sought “dismissing the claim of the plaintiff herein for want of prosecution, gross, inordinate and inexcusable delay, whether pursuant to Order 122 or the inherent jurisdiction of the court).

2 years

56. Order 122 of the RSC permits the court to dismiss a plaintiff’s claim where there has been procedural inactivity for in excess of 2 years. In the present case there has certainly not been 2 years of inactivity on the plaintiff’s part since the commencement of these proceedings.

57. The present motion was issued by the defendant within 8 months of the entry, by him, of an appearance. It is uncontroversial to say that the plaintiff could not progress this claim until the present motion was determined. Furthermore, despite the appearance being conditional with reference to Art. 24, the defendant has, in effect, abandoned that issue (which did not feature in the present motion).

58. In light of the relevant jurisprudence, in particular the Supreme Court’s decision in Kirwan v. Connors & Ors [2025] IESC 21 (“Kirwan”), I am satisfied that it would be contrary to the interests of justice, and a flagrant breach of the principles outlined in Kirwan, for this Court to dismiss the plaintiff’s claim on the grounds of alleged delay.

59. Turning to relief (a) and (b) of the defendant’s motion, these seek:-

“(a) a declaration that the plaintiff was on notice since the 13 th day of March 2023 that the defendant was not identified by an address at [named];

(b) a declaration that the defendant was not identified in the application to the personal injuries assessment Board and therefore, no valid authorisation has been issued to permit the issue and service of proceedings for personal injuries”

60. Insofar as relief (a) and/or (b) concerns the issue of service, the present proceedings were, in fact, received by the defendant. Again, I dealt with this earlier. In short, the defendant chose not to apply to set-aside service, nor has he pursued the sole ground upon which a conditional appearance was entered. Thus, the appearance entered in relation to the plaintiff’s claim is now unconditional and, in simple terms, any services issues have been ‘overtaken by events’.

61. Whereas the defendant seeks at (a) and (b) certain declarations, it is uncontroversial to say that the defendant is not entitled to seek declaratory relief in this interlocutory application.

62. Without prejudice to the foregoing, at the very ‘root’ of the defendant’s complaint in relation to the PIAB process is that the wrong addressed was used for him in the plaintiff’s application, and, consequently, in the Authorisation issued by PIAB. However, as touched on earlier, the defendant has not established any prejudice flowing from the mistake regarding his address.

63. The plaintiff does not aver that he was denied the opportunity to consent to an assessment, by PIAB, of the plaintiff’s claim, as a consequence of not being on notice of the PIAB application and/or Authorisation. It is appropriate to note at this juncture that: “The P.I.A.B procedure can only result in a resolution of the claim when both parties consent, i.e. where the defendant agrees to pay the sum assessed, and the plaintiff agrees to accept it.” (see para. 41 of the Supreme Court’s

decision in Clarke v. O’Gorman [2014] 3 IR 340).

64. Plainly, the defendant has not suggested that he was denied the chance to pay a sum of money to the plaintiff to dispose of her claim. The evidence discloses 2 reasons for this. First, the defendant entirely disputes the plaintiff’s allegations in the strongest and clearest of terms, averring (at para. 3 of his 19 April 2024 affidavit) “I say this is a malicious, ill motivated and entirely unfounded claim and your deponent never, at any stage, inappropriately touched the plaintiff in this case.” Second, in exercise of the discretion conferred on it, PIAB chose not to assess the claim at all. In short, there was no reality in the PIAB process ever being utilised to dispose of the claim in this case. In simple terms, the defendant has not ‘lost’ any entitlement or opportunity, by reason of the wrong address being used in the PIAB documentation. He has sustained no prejudice, and certainly nothing which would justify the dismissal of the plaintiff’s claim in the manner he seeks.

65. Insofar as the defendant contends that a procedural ‘bar’ arises, having regard to s.12(1) of the 2003 Act, because, according to the defendant, the application to PIAB and the Authorisation issued by PIAB were not “valid”, the defendant has, at all material times, been correctly identified, by name, on the application to and Authorisation issued by PIAB. Furthermore, the defendant chose not to challenge any decision by PIAB. I touched on this matter earlier. The defendant has never challenged the validity of the Authorisation which was issued by PIAB (e.g. via an application for judicial review). I say this bearing in mind that it was PIAB, not the plaintiff, which issued the Authorisation, and PIAB is not a party to the present proceedings. Not having challenged the validity of the Authorisation, it does not seem to me that the defendant can now ignore the fact that an Authorisation issued, in compliance with the provisions of the PIAB Act, the contents of which correctly identify (i) the plaintiff; (ii) the defendant; and (iii) the date of the incident, which is the subject of the plaintiff’s complaint.

66. The significance of a PIAB Authorisation is, of course, that it enables a plaintiff to issue legal proceedings and, at this juncture, it is useful to refer to certain statutory provisions, which are of particular relevance to the main argument made by the defendant (in seeking the relief at (c) and

(d) which I quoted, verbatim, at para. 4 of this judgment).

The 2003 Act

67. It seems fair to say that the Personal Injuries Assessment Board Act, 2003 (“the 2003 Act”) was aimed at reforming the State’s personal injury system by providing independent, out-of-court, assessments for compensation, with a view to resolving claims more quickly and reducing legal costs. Section 3 identifies the type of “civil actions” to which the 2003 Act applies, whereas s. 3A excludes certain civil actions from the application of the said Act.

Section 3

68. Section 3 of the 2003 Act begins:-

“This Act applies to the following civil actions-

(a) a civil action by an employee against his or her employer for negligence or breach of duty arising in the course of the employee’s employment with that employer,

(aa) subject to part 5 of the act of 2022 a civil action against the Commissioner of the Garda Siochana to which the Act applies,

(b) a civil action by a person against another arising out of that other’s ownership, driving or use of a mechanically propelled vehicle,

(c) a civil action by a person against another arising out of that other’s use or occupation of land or any structure or building,

(d) a civil action not falling within any of the preceding paragraphs (other than one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person).”

Section 4

69. Section 4 of the 2003 Act deals with “Interpretation” and s.4(1) states inter alia:-

“‘civil action’ means an action intended to be pursued for the purpose of recovering damages, in respect of a wrong, for-

(a) personal injuries, or

(b) both such injuries and damage to property (but only if both have been caused by the same wrong),

but does not include-

(i) an action intended to be pursued in which, in addition to damages for the foregoing matters, it is bona fide intended, and not for the purpose of circumventing the operation of section 3, to claim damages or other relief in respect of any other cause of action…”

“Personal injury”

70. Section 4 of the 2003 Act also makes clear that:

‘personal injury’ has the same meaning as it has in the Act of 1961”

71. Section 2 of the Civil Liability Act, 1961, defines personal injury to include “any disease and any impairment of a person's physical or mental condition”.

Damage

72. Bearing the foregoing in mind, the plaintiff identifies, in clear terms, the nature of the damage which she claims to have suffered as a result of the defendant’s alleged wrongs, i.e.: “Psychiatric injury” (PIAB Application); and “personal injury” (plenary summons, repeated in the statement of claim).

73. Furthermore, in the statement of claim, the plaintiff pleads inter alia the following under the heading of “Particulars of the Injuries suffered by the Plaintiff”:

“The plaintiff was extremely shocked and distressed…”;

“…and has attended counselling”;

“She attended her General Practitioner…who has diagnosed post-traumatic stress disorder”;

“…and the stress and anguish she suffered from the assault is hindering her recovery from long Covid”.

(emphasis added)

74. I am satisfied that all of the foregoing come within the definition of ‘personal injury’ employed in s. 3 the 2003 Act. It also seems to me that no damage of any other nature is referred to by the plaintiff. Indeed, consistent with the nature of the alleged damage being personal injuries, the plaintiff made an application to PIAB, which issued the relevant Authorisation to bring the present proceedings.

The 2004 Act

75. The Civil Liability and Courts Act, 2004 (“the 2004 Act”) is also of relevance. As s.6 provides, the 2004 Act applies to “personal injuries actions”, the definition of which (per s. 2) is as follows:

“personal injuries action” means an action for the recovery of damages, in respect of a wrong-

(a) for personal injuries,

(b) for both such injuries and damage to property (but only if both have been caused by the same wrong), or

(c) under section 48 of the act of 1961, but shall not include an action where the damages claimed include damages for false imprisonment or trespass to the person” (emphasis added)

76. As looked at earlier, I am satisfied that, for the purposes of the 2003 Act, the plaintiff’s proceedings comprise a civil action for the purpose of recovering damages, in respect of a wrong for personal injuries, in the context of the 2003 Act.

77. However, the plain and ordinary meaning of the words used in s.2 exclude from the definition of “personal injuries action” in the 2004 Act an action “where the damages claimed include damages for…trespass to the person”.

Trespass to the person

78. An analysis of the nature of the tort of ‘trespass to the person’ can be found from para. [22.01] onwards of “Law of Torts” (McMahon & Binchy, Bloomsbury press, 4th Ed.) wherein, at para. [22.04], the learned authors state inter alia:

“Apart from the clear benefit of shifting the onus on to the defendant to show that he acted neither intentionally nor negligently, there may be other advantages in trespass regarding the question of remoteness (directness rather than foreseeability) and proof of damage (since trespass is actionable per se)”.

79. Many claims, in which compensation is sought for personal injuries, involve claims in negligence. This is not such a claim.

80. In the present case, the damages claimed by the plaintiff explicitly include “damages for trespass to the person”, as provided for in s.2 of the 2004 Act. Such a plea is made in the plenary summons, and repeated in the statement of claim.

81. Whilst it may be the case that pleas of “assault” and “sexual assault” come within a plea of “trespass to the person”, this is the plaintiff’s pleaded case.

Letter of claim

82. Section 8 of the 2004 Act concerns the obligation on a plaintiff “in a personal injuries action” with regard to a “Letter of claim”. In essence, if such a plaintiff “without reasonable cause” fails to serve notice in writing, before the expiration of one month from the date of the cause of action, on the alleged wrongdoers, stating the nature of the wrong alleged to have been committed, the court shall draw appropriate inferences from that failure and, where the interests of justice require, make no order for costs to the plaintiff or make an appropriate deduction. Whether or not s.8 applies in the present case hinges, of course, on whether the plaintiff’s claim is a personal injuries action within the meaning of s. 2 of the 4004 Act.

S.10 of the 2004 Act

83. The significance of what is, and is not, included in the definition of “personal injuries action” is clear from s.10 of the 2004 Act, which concerns “Bringing of proceedings” and begins:-

“(1) Proceedings in the High Court, Circuit Court or District court, in respect of a personal injuries action shall be commenced by a summons to be known as and referred to in this act as a ‘personal injuries summons’…” (emphasis added).

84. Section 10 (2) specifies what must be included in a personal injuries summons, whereas ss.

(3) provides that: -

“(3) where a plaintiff fails to comply with this section-

(a) the court may-

(i) direct that the action shall not proceed any further until the plaintiff complies with such conditions as the court may specify, or

(ii) where it considers that the interests of justice so require, dismiss the plaintiff’s action…”

Principal argument

85. The defendant’s principal argument in the present application is that these proceedings comprise an action for personal injuries, which can only be progressed via a personal injuries summons. In response, the defendant submits:

“The personal injuries summons is a creature of s. 10 of the civil liability act 2004 which requires that proceedings commence in that form if they are a “personal injuries action”. As provided in s. 2 of the 2004 act, a personal injuries action “shall not include an action where the damages claimed include damages for false imprisonment or trespass to the person”.

It is submitted that these proceedings are manifestly an action where the damages claimed include damages for trespass to the person (as was the case in Clarke v. O’Gorman).

Accordingly, it is procedurally correct to proceed by way of plenary summons”

[see paras. 31 and 32 of the plaintiff’s written submissions, dated 8 January 2026]

Clarke v. O’Gorman

86. The principal authority, upon which both sides relied during the hearing, is the Supreme Court’s decision in Clarke v. O’Gorman [2014] 3 I.R. 340 (“Clarke”). In Clarke, the plaintiff made allegations of assault, sexual assault, battery and trespass to the person, as against the defendant and sought damages. The plaintiff in Clarke chose to issue plenary proceedings, and did not issue a personal injuries summons. To that extent, there are certain parallels between Clarke and the present case. However, the facts in both cases seem to me to be materially different, as illustrated by the following.

87. The plaintiff in Clarke did not make an application to PIAB prior to initiating the proceedings, whereas, in the present case, the plaintiff applied for and received an Authorisation from PIAB before commencing the within proceedings.

88. In Clarke, the defendant did not plead in their Defence that the plaintiff was barred from bringing the proceedings, having regard to section 12 of the 2003 Act (ss.(1) of which provides that: “Unless and until an application is made to the Board under section 11 in relation to the relevant claim and then only when the bringing of those proceedings is authorised under section 14, 17, 32 or 36, rules under section 46(3) or section 49 and subject to those sections or rules, no proceedings may be brought in respect of that claim"). In the present case, not only has no Defence been filed as yet, an Authorisation has, in fact, been issued by PIAB to the plaintiff and, as noted earlier, the defendant has not challenged any decision by PIAB.

89. On the first day of the trial of the plaintiff’s claim in Clarke, and after a jury had been empanelled, the defendant applied to have the plaintiff’s claim struck out. This application was made, in the absence of the jury, on the grounds that the matter was a civil action within the meaning of s. 3 of the 2003 Act and the plaintiff had not complied with s. 11 of the 2003 Act (in that the matter had not been referred to PIAB and the proceedings had not been duly authorised by the Board). This Court (de Valera J.) granted the defendant’s application, placing a stay on that decision to permit an appeal to the Supreme Court, which the plaintiff brought.

90. Before proceeding further, it seems to me that the fundamental question at issue in Clarke was not whether the plaintiff was required to issue a personal injuries summons as opposed to proceeding via a plenary summons and statement of claim. Rather, the ‘core’ question was whether the plaintiff had an obligation under the 2003 Act, which had not been discharged, to apply to PIAB for an Authorisation.

91. In the defendant’s written submissions, the following extracts from the judgment of O’Donnell J (as he then was) are cited verbatim:

“…Some claims for trespass to the person and assault may not involve personal injuries (although that is rare), and there are obviously many actions for personal injuries that do not involve assault (although they may all be, at some technical level, a trespass to the person). But the vast bulk of actions for trespass to the person and assault will also be, and be properly described as, actions for personal injuries. That this is so is reinforced by the provisions of s.17 of the 2003 Act which permits, but does not require, the Board to refuse to provide an assessment in certain cases containing elements out of the ordinary…”

(emphasis added)

[para. 29]

“A civil action is defined as an action for the purposes of recovering damages in respect of a wrong, for personal injuries. The term "other cause of action" refers back to "wrong" and not "personal injuries". The phrase "Other cause of action" in s.4(1)(i) means therefore in my view a cause of action other than that in which personal injuries are claimed. Once this is understood much of the conceptual difficulties and complications disappear. The question then becomes whether this is one of those rare cases in which the claim is for damages for assault or trespass to the person not resulting in personal injury. Self-evidently this is not so. The claim for personal injuries is alleged to have been suffered as a result of an assault. The claim is accordingly one for personal injuries and consequently a civil action captured by the Act of 2003.”

[para. 30]

92. In the foregoing manner, the Supreme Court in Clarke identified and addressed the question before it. It seems very clear that the fundamental question was whether the action brought by the plaintiff (which included pleas of assault and trespass to the person) was a claim for personal injuries, ‘caught’ by the 2003 Act (thus, requiring PIAB Authorisation).

93. It seems to me that it was with reference to the foregoing question that the Supreme Court conducted its analysis. However, the question in Clarke was not whether it is impermissible to issue plenary proceedings, as opposed to a personal injuries summons, where damages are also claimed for trespass to the person even if, as in the present case, there is no cause of action which does not involve personal injuries which are alleged to have been suffered as a consequence of the alleged assault.

94. Guided by the analysis in Clarke, I take the view that, had the plaintiff made no application to PIAB, received no Authorisation, and argued that hers was not a personal injuries claim for the purposes of the 2003 Act, she would have been mistaken.

95. In such a scenario, bound by the decision in Clarke, I would have had no hesitation in holding that, viewed through the ‘lens’ of the obligation in s. 11 of the 2003 Act, her proceedings constitute a civil action for personal injuries. However, the foregoing does not arise, and I can see no criticism by the Supreme Court in Clarke, of the plaintiff’s decision, in that case, to proceed via plenary proceedings. Rather, as I say, the issue was whether the proceedings were ‘captured’ by the 2003 Act, having regard to the nature of the damage for which compensation was claimed (i.e. personal injuries).

96. It does not seem to me that the Supreme Court’s judgment in Clarke has set-aside the plain meaning of the words which the Oireachtas chose to use in s.2 of the 2004 Act, wherein the legislature made clear that a personal injuries action, for the purposes of the 2004 Act, “shall not include an action where the damages claimed include damages for… trespass to the person”. As I say, the plaintiff explicitly seeks damages for trespass to the person in the present case and, therefore, the exception specified in s. 2 of the 2004 Act arises on the literal and ordinary meaning of the Act (being, of course, the first ‘port of call’ when interpreting a Statute) and in circumstances where there is no ambiguity whatsoever in the words used in s. 2. I am fortified in this view by the Supreme Court’s analysis, at para. 35, in Clarke, to which I now turn.

97. My understanding of the Latin phrase “in pari materia” is that it means "on the same subject" or "in a like matter" and that, where two or more statutes are in pari materia, each may be interpreted by reference to the other. That was not, however, the Supreme Court’s view in relation to the 2003 and 2004 Acts. At para. 35 of Clarke, O’Donnell J. (as he then was) stated:

“Nor do I think that it is a solution to this difficulty to seek to invoke the provisions of the Act of 2004. Ideally the scope of the Act of 2003 and the Act of 2004 should be identical. But the Act of 2004 is not expressed to be in pari materia with the Act of 2003 nor is there any obligation to read them together. It is not inherently impossible, even if it is untidy, that a claim can fall under the Act of 2003 and require authorisation, but not be required to use the procedures in the Act of 2004. In any event, it seems to me that the interpretation of the two statutes taken together lead to the conclusion that actions for assault are within the Act of 2003 and not within the Act of 2004. This is because the definition of "civil action" in the Act of 2003 and "personal injuries action" in the Act of 2004 use identical introductory language in providing that each action means an action for the recovery of damages "in respect of a wrong, for - (a) personal injuries, or (b) both such injuries and damage to property (but only if both have been caused by the same wrong)".

However they depart from each other in the exceptions to the definition. In particular the fact that "an action where the damages claimed include damages for false imprisonment for trespass to the person" (s.2(1) of the Act of 2004) is expressly excluded from the definition of "personal injuries action" under the Act of 2004, is itself a guide which suggests that such actions are not excluded from the definition of "civil action" under the Act of 2003. Had it been intended to align the definition section in each Act, it would have been easy to do so given the fact that identical introductory language was used. I certainly see no reason to use the Act of 2004 as a method of retrospective interpretation of the scope of the Act of 2003 when had that been intended, it could have been easily achieved by the simpler and clearer route of amending the Act of 2003 expressly…” (emphasis added)

98. Given the Supreme Court’s view that the 2004 Act is not expressed to be in pari materia with the 2003 Act (i.e. there is no obligation to read them together) coupled with the view that the 2004 Act is not a method of interpretation of the scope of the 2003 Act, it seems uncontroversial to say that, by the same token, the 2003 Act is not a means of interpreting the 2004 Act. Yet, such an approach seems to me to be at the ‘heart’ of the defendant’s application to stay or dismiss the plaintiff’s claim.

99. What I take from the foregoing analysis in Clarke is that it is possible for an action both to come within the ambit of the 2003 Act (i.e. to require PIAB Authorisation) and to fall outside the scope of the 2004 Act (i.e. not to require commencement by a personal injuries summons). I am also satisfied that the foregoing is the case in respect of the plaintiff’s proceedings. In this respect, it ‘mirrors’ the situation in Clarke, where there was no criticism by the Supreme Court of the form of the plaintiff’s proceedings (i.e. plenary summons and statement of claim, with the claim going before a jury).

100. It is also appropriate to note that, in allowing the plaintiff’s appeal in Clarke, the Supreme Court held that s.12 of the 2003 Act did not operate as a jurisdictional bar. The court found that the language of the statute corresponded with various provisions of the Statute of Limitations 1957 (as amended) that operated to bar a remedy, but did not extinguish a right. Properly construed, s.

12 was a procedural provision and, in order to rely on the plaintiff’s non-compliance with s. 12 of the 2003 Act, the defendant in Clarke must have pleaded the non-compliance in his defence. Para.

44 of the judgment in Clarke put matters as follows:

“The lack of authorisation under the Act of 2003 had not been raised by the defendant at any time during the process of pleading. It was only mentioned in correspondence shortly before the trial and the application made at the commencement of the trial. No application was brought to amend the pleadings. Since it was not a jurisdictional matter it could only be raised if it was pleaded and therefore relevant to the issues between the parties. There was therefore no basis to hear the application and no basis for the dismissal of the proceedings.”

101. The foregoing highlights, once more, the very different facts ‘at play’ in Clarke and the very different question which was before the Supreme Court in that case (namely, authorisation under the 2003 Act, not the meaning of s. 2 of the 2004 Act).

102. I do not interpret the decision in Clarke as authority for the proposition that the plaintiff in the present case was required to bring her claim via a Personal Injuries Summons. Rather, Clarke fortifies me in the view that, viewed through the ‘lens’ of s. 2 of the 2004 Act, the plaintiff’s claim falls outside the definition of “personal injuries action” and, therefore, the defendant has not established an entitlement to relief in respect of the grounds upon which the defendant’s counsel concentrated during the hearing before me (i.e. reliefs (c) and (d) of the defendant’s motion).

103. For the foregoing reasons, I take the view that the plaintiff was not required to issue these proceedings by means of a Personal Injuries Summons.

104. As well as failing in the principal argument made during the hearing, I am also satisfied that the defendant is not entitled to relief under any other of the many grounds canvassed in the motion. I have already dealt with the majority of these but, for the sake of completeness, I would add the following (particularly in circumstances where there was no formal withdrawal of an application for any of the relief canvassed in the defendant’s motion).

105. It would be contrary to justice to dismiss the present proceedings on ground (g) wherein it is asserted that “the plaintiff’s plenary summons and statement of claim disclose no damage and thereby no reasonable cause of action and is therefore frivolous and/or vexatious within the meaning of Order 19, rule 28…”. Whilst I accept the defendant’s submission that damages cannot be recovered for worry and stress, falling short of a psychiatric injury (see Murray v. Budds [2017] 2 IR 178) it is clear from the evidence that the plaintiff is alleging that she sustained “psychiatric injury”. She used that very phrase in the PIAB application and the plaintiff’s statement of claim, not only seeks damages for personal injury, the plaintiff pleads inter alia that he has been diagnosed with “post-traumatic stress disorder” (“PTSD”).

106. As to the defendant’s assertion that the plaintiff’s general practitioner is not qualified to diagnose PTSD, three comments apply. First, in her PIAB application the plaintiff, through her solicitors, makes clear that the GP’s report does not adequately describe her injury and states inter alia “Psychiatric report required”. Second, this is reflected in the statement of claim, wherein it is pleaded that “…more detailed particulars will be furnished in due course and in particular upon receipt of updated medical reports”. Third, it will also be recalled that the tort of trespass to the person is actionable per se. That said, it is perfectly clear that the plaintiff claims to have suffered damage by way of personal injury and intends to adduce evidence of an alleged psychiatric injury.

107. As Ms. Justice Baker made clear in Wilkinson v. Ardbrook Homes Ltd [2016] IEHC 434 (at para. 19) the correct approach is for this Court to ask, “whether the plaintiff could possibly succeed on the case as pleaded and in light of the facts asserted, and only if it is satisfied that a plaintiff could not possibly establish those facts or could not possibly succeed on the pleadings, should the proceedings be struck out”. Applying this principle, there is simply no basis for the defendant’s suggestion that the plaintiff’s pleaded claim is “frivolous” or “vexatious”.

108. For the reasons discussed in this judgment, the defendant has not established an entitlement to the relief at (i) of the motion, wherein it is asserted that the proceedings should be dismissed “by reason of procedural unfairness and/or reckless taking of an advantage against the defendant amounting to a want of prosecutorial bona fides”. The evidence does not support any such finding.

109. Similarly, the defendant has not established that his “procedural and statutory rights have been breached to such an extent and in such a manner that the proceedings themselves constitute an abuse of process” (see relief (e) of the motion). On the evidence before me, nothing of the sort has been demonstrated.

In conclusion

110. Despite the undoubted skill with which counsel for the defendant made submissions, the outcome of this application flows from the interpretation of the plain meaning of words in a statute and the application of established legal principles to the facts disclosed in the evidence before me.

111. For the reasons set out, the defendant has not established any entitlement to stay, or dismiss, the plaintiff’s claim on any of the grounds asserted.

112. On the basis that it is in the interests of both sides for the matter to be determined as expeditiously as possible, I would also invite counsel for both parties/ their instructing solicitors, to liaise with regard to agreeing a ‘timetable’ going forward (i.e. to agree specific dates in relation to the exchange of pleadings, including, for example: (i) the raising of any request for particulars; (ii) the delivery of replies; the service of (iii) a defence; (iv) any reply to defence; (v) any rejoinder; and to agree dates for (vi) the making of any request for discovery; (vii) any reply to same; and

(viii) the issuing of any motion seeking discovery) which timetable I would propose to include in the final order by way of agreed Directions, unless both sides submit otherwise.

113. Under the heading “Costs to follow event”, s. 169 of the Legal Services Regulation Act, 2015 begins:-

114.

169. (1) A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including—

(a) conduct before and during the proceedings, 115.

(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the 116. proceedings,

(c) the manner in which the parties conducted all or any part of their cases, 117.

(d) whether a successful party exaggerated his or her claim, 118.

(e) whether a party made a payment into court and the date of that payment, 119.

(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the 120. date, terms and circumstances of that offer, and

(g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were 121. unreasonable in refusing to engage in the settlement discussions or in mediation.

(2) Where the court orders that a party who is entirely successful in civil proceedings is not entitled to an award of costs against a party who is not successful in those proceedings, it shall give reasons 122. for that order.

123. The defendant has been entirely unsuccessful in this motion. Thus, having regard to section

169 and to O. 99 RSC, my preliminary view is that there are no factors which would deprive the plaintiff of her presumptive statutory right to the costs of this application (i.e. I would not propose to depart from the ‘normal’ rule that ‘costs’ should ‘follow the event’).

124. The matter should be listed before me at 10:30 a.m. on Friday 13 February for the purpose of making a final order. In the event of agreement between the parties as to the form of a final order, a draft should be submitted to the Registrar as soon as possible.

125. In the event of disagreement, the parties have liberty, but are not required, to file short written submissions no later than 5 p.m. on Wednesday 11 February 2026.