Supreme Court allows amendment to clarify original negligence claim despite new personal injury procedural regime.

THE SUPREME COURT

[Record No. 2014/128]

Murray J.

MacMenamin J.

Laffoy J.

BETWEEN:

FELIX MOOREHOUSE

PLAINTIFF/APPELLANT

AND

THE GOVERNOR OF WHEATFIELD PRISON, THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM, IRELAND AND THE

ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 5th day of March, 2015

1. On the 9th day of October, 2014 this Court allowed the plaintiff’s appeal against an order of the High Court, refusing to permit

amendments to the plaintiff’s personal injury summons herein. The proposed amendments set out particulars as to the circumstances

in which, it is claimed, the plaintiff, (now “the appellant”), sustained injuries in an accident which befell him whilst a prisoner in

Wheatfield Prison. The question which arises in this appeal is as to the extent to which the provisions of the Civil Liability & Courts

Act, 2004 (“the Act”), taken together with the Rules of Court made thereunder (Rules of the Superior Courts (Personal Injuries) 2005;

S.I. 248/2005 (“the statutory instrument” or “S.I. 248”), had the effect of abridging, the rights of parties in personal injury actions to

amend their pleadings prior to hearing.

2. There is no doubt that the Act of 2004, together with the Rules promulgated in the statutory instrument, introduced a new regime

to personal injury claims procedure. The defendants, (who are the respondents in this appeal), contend that the regime is not simply

innovative as to the form of procedure for bringing proceedings, but that it actually delimits the right to amend pleadings once

initiated, and supplants the extant rules in regard to the entitlement to amend pleadings provided for both in the Rules of the Superior

Courts, 1986, as amended, and in the decided case law.

3. The defendants’ submission, on the face of it, is a simple one. Its effect, however, it would be quite radical. It is submitted that

the basic governing principles for permitting the pleading of claims in respect of personal injuries in summary form has been explicitly

dis-applied under the new procedure. It is contended that the effect of these changes is now to debar this plaintiff/appellant from

furnishing additional particulars as to the circumstances of the claim arising herein. In fact, the question which now arises, is, as to

the extent to which that new regime involves an incursion into previously well identified procedural rights. The defendants’ case is

that the Act now provides for one single mechanism, whereby, in order to fulfil the legislative intendment, there is to be a detailed

letter of claim; more expansive, but simplified, pleadings; affidavits covering the content of the pleadings; and explanations of any

inability to provide the detail stipulated in pleadings; all of which are to be “superimposed” on the pre-existing rules which formerly

governed personal injury actions and other proceedings. It is said that the format of a plaintiff’s claim is now, in effect, mandatory,

and that the entirety of the Rules of the Superior Courts, insofar as they concern pleadings in personal injury cases, are now to be

viewed and interpreted through the prism of the Act of 2004, and S.I. 248/2005.

4. It is necessary to first consider the facts of the case in some detail, analysing the provisions of the Act, and the new statutory

instrument, with an eye to discerning the intent of the legislature. This must be seen in the light of the duty of the courts to ensure

that in a claim the true issues in controversy are determined as an aspect of the administration of justice in the courts, established

under the Constitution.

5. The intent behind the new pleadings regime, is self-evidently laudable. It is to avoid generalised, vague, unspecific and formulaic

pleading, and the consequent injustice to parties caused by delayed notifications of the existence and nature of a potential claim.

Thus, now, a plaintiff is obliged to consider fully, and at the outset, the nature of the claim; and positively to verify the nature of

that claim in affidavit form. Equal duties fall on defendants.

Relevant Provisions of the 2004 Act

6. To fulfil these objectives, the 2004 Act provides that a court may draw inferences from a failure to serve a notice in writing within

two months of the accrual of a cause of action, stating the nature of the wrong alleged to have been committed (Section 8). The

Act provides that pleadings are, thenceforth, required to contain full and detailed particulars of the claim of which the action

consists, and each allegation, assertion or plea comprising that claim (Section 13). Every assertion or allegation in the pleadings is to

be verified by way of affidavit of verification. While acknowledging the constitutional function of the courts to make rules of court

concerning practice and procedure, the Act seeks to provide that there can be no derogation from its provisions, and that no rules

may be made regarding personal injury actions which are inconsistent with the terms of the Act (Section 9(4)(a)). One might observe

that this last provision is merely an iteration of the principles of vires, identified by Walsh J. in Thompson v. Curry [1970] I.R. 61. The

specific rules and principles which, in fact, arise to this application are considered later in this judgment. It is necessary first to

outline the circumstances of the claim.

The Circumstances of the Claim

7. The appellant claims that while a prisoner in Wheatfield Prison he was working on a guillotine steel cutter. It is alleged his left hand

became caught by the blade, and as a result, he sustained very serious amputation injuries to fingers of his left hand.

8. In the personal injury summons prepared by his then solicitors, and served on the 10th June, 2010, the appellant pleaded that the

respondents had failed to provide a safe place and system of work and supervision; allowed him to operate the machine when it was

unsafe; did not have a guard on the machine; gave insufficient formal training, failed to carry out safety assessment or provide any

safety statement; failed to isolate the power supply; had in place a defective foot peddle and power drive; failed to have warning

signs; and failed to comply with the provisions of the Safety & Welfare at Work Act, 2005, and the Safety, Health & Welfare at Work

(General Application) Regulations (S.I. No. 299 of 2007).

9. In response to a reply for particulars, the solicitors furnished further details of the circumstances of the place and time of the

alleged accident, and witnesses to the events. These details are not relevant here.

10. The defence consisted of a blanket denial, alleging negligence and contributory negligence on the part of the appellant, and

pleading that he had failed to obey written instructions as to how the machine should be operated. It is claimed the appellant

removed guarding from the machine and operated it in an unauthorised manner when it should have been shut down.

11. In response to a motion for discovery, the respondents provided the appellant’s work records whilst he was in prison,

documentation pertaining to his training on a welding course, and a CD on prisoner induction training.

12. The action did not proceed with great expedition. On the 7th November, 2013 a new solicitor came on record on behalf of the

appellant. They sought further particulars of the negligence and contributory negligence alleged; but they also said that it had

become apparent, on the basis of instructions, that it was necessary to provide additional particulars of the defendants’ negligence.

The plaintiff says that this did not entail pleading any new cause of action; but, rather, simply providing detail of additional

circumstances relating to the claim.

The Application to the High Court

13. In the absence of consent, the solicitors brought a motion to amend to the High Court. The intended particulars fell into three

categories. The High Court judge permitted amendments to the pleadings in the first category, which alleged failure on the part of the

defendants to have a prison officer present in a room adjacent to the workshop, where there was present a ‘cut off’ switch; and,

second, an amendment to the effect that, assuming warning signs were present in the workshop, the defendants had failed to ensure

that the plaintiff was capable of reading them.

14. However, in the context of the third category, described below, the High Court judge, in determining the issues, posed four

rhetorical questions as to the nature and range of the real issues in controversy between the parties. The judge asked herself:

(a) Was the machine defective?

(b) Was the plaintiff trained?

(c) Was there adequate supervision of the machine?

(d) Were there sufficient warnings regarding the dangers of this machine?

The Amendments Regarding Methadone

15. The third intended amendments were to include, a plea at two points in the summons, to the effect that the respondents had

allowed the appellants “to operate at the machine when they knew, or ought to have known, that he was under the influence of a

controlled drug, to wit methadone”. The motion judge concluded that these intended amendments lay outside the four questions just

identified, and thus did not come within the description of the “real issues in controversy between the parties”. The judge reasoned

that the procedure for furnishing particulars was now to be seen through the prism of the Act, and Rules of 2004, and that

consequently the established jurisprudence of the Superior Courts in relation to amendments was now to be viewed with reserve. By

implication, therefore, the judge’s conclusion was that the ‘liberal’ approach to be found in the jurisprudence regarding amendments

had been superseded by the 2004 Act and the new Rules. The question then, is whether the motion judge should have disallowed

amendments which addressed the alleged methadone usage?

16. The appellant’s case is that the permitted amendments ‘flowed from the pleadings’ and the issues arising therein. By contrast, it is

now suggested by the respondent, first, that those disallowed, contained “new facts”, and, further, that they constituted a new and

different case, made outside the limitation period, and after service of the notice of trial. It is said the content of the contested

particulars was never previously canvassed; and did not refer to the allegedly defective machine. On that basis, counsel for the

respondent now submits that judicial discretion, to be exercised now in light of the new regime, should result in disallowing what are

termed the “methadone” amendments. Counsel submits that the principles in extant case law were predicated upon a consideration

only of the Rules of the Superior Courts, 1986, as amended. These were prior to the 2004 Act and S.I. 248. It is submitted that the

case law on amendments does not address the provisions of the Civil Liability & Courts Act, 2004, or the Rules of Court. Counsel

submits that, hitherto, the Superior Courts had no reason to consider amendments to pleadings in personal injury actions as a distinct

category in any reported case, and that the decided authorities are now to be carefully analysed, and, many propositions or judicial

pronouncements may have to be disregarded insofar as they are not in accordance with the spirit and letter of the 2004 Act and S.I.

248.

17. Order 1A(2) of the 2005 Rules, quoted in full later, provides that, if “any conflict shall arise” between the newer 2005 Rules and

the 1986 Rules, the provisions of the latter rule shall, in personal injury claims, prevail. It is necessary then to examine the statutory

provisions in some detail in order to determine whether either the Act, or the new Rules, contain provisions which are “in conflict with”

Order 28(1) of the Rules of the Superior Courts. Order 28(1) provides:

“1. The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in

such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the

purpose of determining the real questions in controversy between the parties.”

18. The High Court judge was persuaded that the third category of amendment was an entirely different case. There is no doubt that

what was in contemplation was a new aspect of the case as previously pleaded in the personal injuries summons. But viewed, at the

level of principle, a further question arises, outside the judge’s four rhetorical questions (a), (b), (c) and (d), described earlier. That

further question relates to the appellant’s ability or capacity to carry out work of the type in question. The motion judge implicitly

gave part-recognition to alleged incapacity, in allowing the additional particulars regarding the plaintiff’s alleged inability to read

warning signs. But it is difficult to ignore the logic of that permitted amendment. The clear implication of the “warning sign”

amendment was to the effect that, even if such signs had been present in the workshop, the appellant was incapable of reading

them. In my view, this plainly implied an incapacity or unfitness to operate the machine. What then is the distinction, in principle,

between the amendment allowed, regarding inability to read, and the “methadone amendment”, which was disallowed? In my view

the respondents seek here to make a differentiation without a distinction. There is no such logical distinction. Both raised the

question of an incapacity or unfitness to do the work either through the illiteracy or methadone consumption. On that basis alone,

very arguably, the appeal should be allowed.

The Question of Prejudice

19. In consideration of the principles applicable, it is important to emphasise that, both in the High Court and this Court, counsel for

the respondents was asked whether his client would suffer actual prejudice if the disallowed amendments were permitted. While it

was contended that there would be “presumptive prejudice” arising from the delay itself, there is no indication that the respondents

would suffer any “actual” prejudice as a result of permitting the amendment. This is not, therefore, a case where there are deceased

witnesses, or where documents have become unavailable or are destroyed, or where, for some other reason, a defendant would be

deprived of a defence which would have been available had the matter been pleaded fully in the first instance. There is no culpable

delay by the solicitor now acting.

The Act of 2004

20. The Act of 2004 states, in its preamble, that it is intended to “provide for certain procedural and other changes in actions to

recover damages for personal injuries …” At Section 2 it defines “personal injuries action” as meaning an action for 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.”

(The reference here is to the Civil Liability Act, 1961).

21. In the definitions section, (section 2(1)), the term “pleading” is defined as meaning, “in relation to a personal injuries action, a

personal injuries summons, a defence, a defence and counterclaim, or any other document (other than an affidavit or a report)

prepared by a person who is not a party to that action), that, under Rules of Court, is required to be, or may be, served (within

such period as is prescribed by those rules) by a party to the action on another party to that action.”

22. Section 8 of the Act provides:

“8.-(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before

the expiration of 2 months from the date of the cause of action, or as soon as practicable thereafter, on the wrongdoer

or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, the court hearing

the action may -

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require—

(i) make no order as to the payment of costs to the plaintiff, or

(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers

appropriate.

(2) In this section “date of the cause of action” means –

(a) the date of accrual of the cause of action, or

(b) the date of knowledge, as respects the cause of action concerned, of the person against whom

the wrong was committed or alleged to have been committed, whichever occurs later.”

23. Section 9 provides, insofar as relevant:

“9.-(1) It shall be a function of the courts in personal injuries actions to ensure that parties to such actions comply with

such rules of court as apply in relation to personal injuries actions so that the trial of personal injuries actions within a

reasonable period of their having been commenced is secured.

…

(4) Nothing in this Act shall be construed as limiting or reducing the power of an authority, having (for the time being)

power to make rules regulating the practice and procedure of a court, to -

(a) make such rules in relation to personal injuries actions provided such rules do not derogate from, and are not

inconsistent with, any provision of this Act, or

(b) make such rules in relation to proceedings or actions other than personal injuries actions.

…”

24. Section 10 addresses the meaning and content of a “personal injuries summons” as follows:

“10-(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”.

(2) A personal injuries summons shall specify -

…

(f) full particulars of the acts of the defendant constituting the said wrong and the circumstances

relating to the commission of the said wrong,

(g) full particulars of each instance of negligence by the defendant.

…”

The section provides for sanctions, including staying the proceedings in the event of non-compliance with the provision contained in

the section.

25. Section 11 addresses requests for further information. Insofar as relevant, it provides:

“11-(1) Upon the request of a defendant in a personal injuries action, the plaintiff shall provide the defendant with -

(a) particulars of any personal injuries action brought by the plaintiff in which a court made an award of damages,

…”

The section provides that in the event of failure to provide details of any other personal injuries action brought by the plaintiff the

proceedings may be stayed.

26. Insofar as relevant, Section 12 of the Act provides:

“12-(1) A defence to a personal injuries action shall specify -

(a) the allegations specified, or matters pleaded, in the personal injuries summons of which the

defendant does not require proof,

(b) the allegations specified, or matters pleaded in the personal injuries summons of which he or she

requires proof,

(c) the grounds upon which the defendant claims that he or she is not liable for any injuries suffered

by the plaintiff, and

(d) where the defendant alleges that some or all of the personal injuries suffered by the plaintiff were

occasioned in whole or in part by the plaintiff's own acts, the grounds upon which he or she so alleges.

…”

The remainder of the section addresses counterclaims.

27. Section 13 addresses pleadings, and provides:

“13-(1) All pleadings in a personal injuries action shall -

(a) in the case of a pleading served by the plaintiff, contain full and detailed particulars of the claim of

which the action consists and of each allegation, assertion or plea comprising that claim, or

(b) in the case of a pleading served by the defendant or a third party contain full and detailed

particulars of each denial or traverse, and of each allegation, assertion or plea, comprising his or her

defence.

(2) Subject to this Act, pleadings in a personal injuries action shall be in such form as are prescribed by

rules of court.”

The form of these pleadings is considered later in this judgment.

28. By virtue of Section 14 it is provided:

“14-(1) Where the plaintiff in a personal injuries action -

(a) serves on the defendant any pleading containing assertions or allegations, or

(b) provides further information to the defendant,

the plaintiff …shall swear an affidavit verifying those assertions or allegations, or that further information.”

(emphasis added)

Thereafter, the section addresses time limits and sanctions which may be applicable in the event of providing false or misleading

information in an affidavit. I am unable to find any provision in the 2004 Act which impacts on Order 28, Rule 1, which addresses

amendments. Indeed, s.14, in terms, specifically countenances the provision of further information without precluding any category of

such “information”, such as additional clarification of the circumstances of an accident.

The Rules

29. The Rules Committee of the Superior Courts, promulgated S.I. No. 248/2005 Rules of the Superior Courts (Personal Injuries) 2005.

These rules are to be construed together with the existing Rules of the Superior Courts, 1980 – 2005.

30. Prior to the 2005 Rules, the initiation of proceedings generally was governed by Order 1 RSC, 1986, which provided, at Rule 1,

that “civil proceedings in the High Court shall be instituted by a summons of the Court to be called an originating summons”. Rule 2

provided that an originating summons for the commencement of plenary proceedings was to be in conformity with the form provided in

an Appendix to the 1986 Rules. The old system allowed for a very short endorsement of claim in the plenary summons, later to be

supplemented with a statement of claim. Frequently, pleadings in personal injury actions did not reach the gravamen of the case until

the particulars, whether set out in the statement of claim, or in reply to a notice for particulars. Insofar as personal injuries actions

are concerned, the new 2005 Rules merged the “originating summons” and “statement of claim” procedure into one process. The

question which again arises is whether there is any inconsistency or conflict between the new 2005 Rules and Order 28, Rule 1 of the

Rules of Superior Courts quoted earlier.

31. Order 1A of the 2005 Rules set out a new process for personal injury claims. As briefly alluded to earlier, Order 1A(2) provides:

“Save where otherwise expressly provided by this Order, in the event that any conflict shall arise between the provision

of any rule of this Order and any other provision of these Rules, the provision of the rule of this Order shall, in respect of

personal injuries actions, prevail.”

32. Order 1A(3) provides that a personal injury action should be instituted “by an originating summons, for the commencement of

plenary proceedings with pleadings and hearing on oral evidence, which shall be in the Form No. 1 in Appendix CC, to be called a

personal injuries summons.” (emphasis added) This Appendix provides that, in addition to personal details regarding the plaintiff, there

should be given full and detailed particulars of:

“the nature of the claim and each allegation, assertion or plea comprising that claim; the acts of the defendant

constituting the said wrong, and the circumstances relating to the commission of the said wrong; and each incidence of

negligence by the defendant …”

The Appendix goes on to propose a “suggested format” in which the endorsement might be presented. But there is nothing in these

provisions that prohibits amendment of pleadings.

33. It is true that the 2005 Rules do explicitly dis-apply the application of certain extant Rules of the Superior Courts. Order 1A(2)(3)

in S.I. 248/2005 provides that:

“Without prejudice to the generality of sub-rule 2, Order 19, rules 1 and 3 and Order 21, rule 6 shall not apply in personal

injuries actions.”

These provisions relate to the old “Statement of Claim” now superseded by the Personal Injuries Summons. The reference to “sub-rule

2” is, of course, to the sub-rule contained in Order 1A, sub-rule 2(2) cited earlier, which governs interpretation in the case of any

conflict between the provisions of any rule of Order 1A and to any previously extant Rule of the Superior Courts. What is noteworthy,

however, is that there is no reference whatsoever in the 2005 Rules either to the power to amend, or to Order 28, Rule 1 Rules of the

Superior Courts, 1986, or to the question of amendments generally.

34. In fact, Order 1A(4) provides:

“Save where otherwise expressly provided by this Order, the provisions of these Rules which apply to a plenary summons

shall, with appropriate modifications, apply to a personal injuries summons.”

35. The only effect of these two provisions, taken together is expressly, but only, to dis-apply Order 19, Rules 1 and 3, and Order 21,

Rule 6, of the Rules of the Superior Courts insofar as they apply to personal injuries actions. The duty of the Court, otherwise, is to

apply the other extant orders and rules where necessary with “appropriate” modifications (Order 1A(4)). Finally, Order 1A(6) provides:

“Where a plaintiff alleges that he was unable, at the time at which a personal injuries summons was issued, to include in

the personal injuries summons any of the information required by this Order to be specified in the personal injuries

summons, he shall include in the personal injuries summons a statement of the reasons why it is claimed that any such

information could not be provided at the time of issue of the summons. The plaintiff shall, at the time the personal

injuries summons is served or as soon as may be thereafter (whether by amendment or otherwise) provide such of the

information required by this Order as was not included in the personal injuries summons.” (emphasis added)

This Order undoubtedly has some application to this appeal, but only insofar as the reason for any omission in a personal injury

summons is to be explained. The Order, directory in nature, specifically provides that the additional information may be provided “by

amendment or otherwise”. It does not diminish the Court’s discretion to amend pleadings. This Order is not in conflict with Order 28,

Rules of the Superior Courts 1986.

36. The appellant’s solicitor has sworn an affidavit outlining when he received instructions from his client as to his alleged methadone

usage. There is no indication of any delay between receiving these instructions and bringing the application herein. The merits of the

amendment are not a matter for this Court.

37. The abrogation of identified Rules is confined, therefore, to Order 19, Rule 1 which provides that the pleading of an action in a

statement of claim shall be “as brief as the nature of the case will admit”, and may be penalised, at risk of cost, any “unnecessary

prolixity”. Order 19, Rule 3 provides that every pleading shall “contain, and contain only, a statement in a summary form of the

material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they

are to proved, …” Order 21, Rule 6 provides simply that:

“6. No denial or defence shall be necessary as to damages claimed or their amount; but they shall be deemed to be put

in issue in all cases, unless expressly admitted.”

These are all, self-evidently, inconsistent with the new Rules and to be disregarded in the case of personal injury claims. Order 1A(7)

removes the necessity for a statement of claim in personal injury actions, but applies the provisions of the Rules “with appropriate

modifications” to a personal injuries summons. The extant rules did not prohibit the amendment of a statement of claim, but subject

to principles touched on later.

38. The provisions of the Act, and the Rules, have been set out extensively in order to demonstrate what is the fundamental lacuna

in the defendants’ case. Neither the Act of 2004, nor the 2005 Rules, purport to effect an amendment, which conflicts with, modifies,

or is, in any sense, an abrogation of, Order 28 of the Rules of the Superior Courts which addressed the question of amendment of

pleadings.

39. It is self-evident that, subject to the principle separation of powers contained in Article 6 of the Constitution, the Oireachtas is

entitled to legislate, insofar as constitutionally permissible, as to the manner in which a statutory term should be interpreted. Save

the express exclusions identified earlier, the respondent has not pinpointed any rule where Order 1A affects the application of any

other extant order or rule of the Superior Courts. The respondent has not identified the manner in which either the 2004 Act, or the

2005 Rules, trench on the powers of a court to permit amendments, where necessary, in the interests of justice and fair procedure.

There is, therefore, a logical “disconnect” between what is claimed to be the effect of Order 1A, Rule 2(2) of the 2005 Rules, and its

impact on the extant rules. In fact, a proper interpretation of both Order 1A(1)(4) and Order 1A(7) is to the contrary effect. It is

self-evident that Order 28 specifically provides that a court may, at any stage of the proceedings, allow either party to amend his

endorsement “or pleadings in such manner and on such terms as may be just”. The primary criterion to be applied by the courts is as

to whether such amendments “may be necessary for the purpose of determining the real questions in controversy between the

parties”.

40. As Geoghegan J., speaking for this Court, in Croke v. Waterford Crystal Limited & Irish Pensions Trust Limited [2005] 2 I.R. 383

pointed out, the Rules of the Superior Courts, insofar as they concern amendments are intended to be “liberal”, and intended for the

purpose of ensuring that the real matters in controversy between the parties are determined by the courts.

41. Much time has elapsed since the year 1670 when one anonymous commentator observed that pleading had become a “snare and

trap, and piece of skill” (see Baker, Introduction to Legal History, Butterworths 3rd Edition 1990, page 104). But claims must,

nevertheless, be concisely pleaded. The intent of the new procedure is to ensure clarity and precision in pleadings in personal injury

actions, and to prevent surprise at the hearing, but not at the cost of fairness. It is a matter for the courts to ensure, under the

Constitution, that the Act, and the statutory instrument, properly interpreted under the Constitution, ensure that such fairness is

preserved for the protection of all parties to a personal injury proceeding.

42. It is clear, of course, that courts do have a discretion to amend. That discretion must be exercised judicially. Where an

amendment may be made without prejudice to the other party, to enable the real issues to be tried, it should be allowed. A court

must consider whether prejudice can be overcome by an adjournment. If so, that amendment should be made, and an adjournment, if

necessary, granted, to overcome any possible prejudice. If the amendment puts another party to extra expense that can be

regulated by a suitable order as to costs, or by the imposition of a condition that the amending party shall indemnify the other party

against such expenses (see the dicta of Lynch J. in Director of Public Prosecutions v. Corbett [1992] ILRM 674 at page 678, quoted in

Croke, cited earlier. A court will, inter alia, consider an applicant’s conduct in the proceedings, and any question of delay. It is now

long established that the function of courts is to decide the rights and duties of parties, and not to punish them for mistakes they

make in the conduct of their cases by deciding otherwise than in accordance with their rights. As Bowen L.J. pointed out in Cropper

v. Smith (1883) 24 Ch. D. 305

“Courts do not exist for the sake of discipline but for the sake of deciding matters and controversy …”

43. Counsel for the respondent placed considerable reliance on the judgment of this Court in Smyth v. Tunney [2009] 3 I.R. 322. To

my mind, that reliance was misplaced. In Smyth this Court considered and approved the judgment of the High Court in Krops v. Irish

Forestry Board Limited & Kieran Ryan [1995] 2 I.R. 113. In turn, in Krops, Keane J., then a High Court judge, pointed out that the

difficulties which had arisen in considering amendments arose from an “over-rigid” application of the rule in Weldon v. Neill [1887] 19

QBD 394 had been to the effect that an amendment would not be permitted if it would deprive the defendant of a defence under the

statute of limitations. Keane J. observed that, where a plaintiff sought to add a new cause of action arising out of the same facts, or

substantially the same facts, there was no reason why a court, even in the absence of a specific rule, should be precluded from

permitting such an amendment. In Smyth v. Tunney, having referred with approval to Krops v. Irish Forestry Board Limited, Finnegan

J. went on to point out that Order 28, Rule 1 had also been considered by this Court in Croke v. Waterford Crystal Limited & Irish

Pensions Trust Limited [2005] 2 I.R. 383. This authority establishes that the first matter to be considered in an application to amend

is whether the amendment sought is necessary for determining the real question in controversy in the litigation. The next issue to be

considered is whether the amendment can be made without prejudice to the other party. A third criterion is whether any possible

prejudice can be addressed or regulated by a suitable order as to costs. Finally, a very late application to amend is less likely to

succeed, particularly if the amendment is on a purely technical point. There are, of course, non-exclusive general statements of

principle to be applied on the facts of a given case.

44. Finnegan J. went on to point out:

“In summary the law as to amendment now is that an amendment will be allowed if it is necessary for the purposes of

determining the real issues in controversy between the parties. The addition of a new cause of action by amendment

will be permitted notwithstanding that by the date of 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. Simple errors such as an error in date or an error as to location which do

not prejudice the defendant and enable the real questions in controversy between the parties to be determined will be

permitted.”

45. In Smyth v. Tunney the amendments sought did not satisfy the requirements because the applicant both sought to add causes of

action to the statement of claim and to plead a very substantial range of additional facts.

46. This is not the situation here. No effort is made to plead a large range of new facts. This application does not concern an

endeavour to plead a new cause of action. What is in question here is purely the addition of facts, by amendment, to “clarify the

original claim” (see paragraph 30 of Smyth v. Tunney).

47. It is not for this Court to make any comment on the merits or demerits of the amendment. The inclusion of the particulars by

amending the personal injury summons, and under the rubric of the claims of negligence and breach of duty and breach of statutory

duty already pleaded, was necessary for the purpose of determining part of the questions already in controversy between the parties.

The true issues in controversy between the parties was, whether, having regard to the circumstances, there was an unsafe system

of work for the appellant. This test not only concerned the state of the machinery, and the circumstances of its operation, but, also,

the capacity of the applicant to operate that machinery on the date and time. This is not the introduction of an entirely new

controversy, but rather the clarification of issues already arising.

48. For these reasons, I would allow the appeal.