P.C. [A Minor] v Doran

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 13 June 2022
• Neutral Citation: [2022] IEHC 367
• Court: High Court
• Docket Number: [2018-3417-P]

Between

P.C. (A Minor) Suing by Her Father and Next Friend R.C.

Plaintiff

and

Dylan Doran, Brendan Doran, Bernadette Dawson and Kildare County Council

Defendants

[2022] IEHC 367

[2018-3417-P]

THE HIGH COURT

Personal injury – Damages – Amendment of defence – Fourth defendant seeking to amend its defence – Whether the amendment was necessary for the purpose of determining the real questions in controversy between the parties

Facts: The plaintiff’s father in her personal injury summons of the 18 April 2018 sought damages for personal injuries the plaintiff sustained when she was bitten by a dog at premises owned by the fourth defendant, Kildare County Council, and rented by the other three defendants, Messrs Doran and Ms Dawson. The fourth defendant filed its defence on the 25 February 2019. By letter dated 7 October 2019, the fourth defendant sought the plaintiff’s consent to amend the defence in the terms as set out in an attached draft. The plaintiff’s solicitors did not reply to that letter and fifteen months later the fourth defendant applied to the High Court to amend its defence. The amended defence was a fully reworked defence rather than just the original defence with some additional paragraphs. It included a preliminary objection that was not included in the original defence. The fourth defendant contended that the amendment was necessary for the purpose of determining the real questions in controversy between the parties. The fourth defendant contended that the amended defence arose from the same facts and did not alter the case that the plaintiff would be making at trial. The fourth defendant proposed no order as to costs. Counsel opposed the plaintiff’s application for costs and claimed that consent was unreasonably withheld.

Held by Bolger J that the amended defence sought to be made arose from the same set of facts, raised legal consequences from those facts already raised, and could be said to be necessary for the purpose of determining the real questions in controversy between the parties. She held that the reasons why the pleas were not included in the original defence were credible and sufficient. The fourth defendant’s delay of eight months in advising the plaintiff’s solicitors of the need to make the amendment, and of fifteen months in bringing the application, did not persuade the court to refuse to allow the amendment. Bolger J held that the prejudice identified by the plaintiff was not of any sufficient magnitude (if it was a prejudice at all), given the relatively early stage in the litigation at which the fourth defendant identified its need to amend its defence. Bolger J allowed the fourth defendant’s application to deliver its amended defence in the terms as exhibited.

Bolger J held that given the nature of the extent of amendments sought and, in effect, the replacement of the original defence with a brand new defence, and the plaintiff’s concern that this could expose her to a motion to dismiss, her consent was not necessarily unreasonably withheld. Bolger J therefore awarded costs to the plaintiff in accordance with the “norm” as envisaged by O. 28 r. 13. Bolger J held that the costs order she had indicated in favour of the plaintiff related only to the costs in defending the motion, and should be adjudicated upon in default of agreement.

Application allowed.

JUDGMENT of Ms. Justice Bolger delivered on the 13th day of June, 2022

1 This is an application by the fourth named defendant, Kildare County Council, to amend its defence. For the reasons set out below I am allowing the application.

2 The plaintiff's father in her personal injury summons of the 18 April 2018 seeks damages for personal injuries the plaintiff sustained when she was bitten by a dog at premises owned by the fourth named defendant and rented by the other three defendants. The fourth named defendant filed its defence on the 25 February 2019. By letter dated 7 October 2019, the fourth named defendant sought the plaintiff's consent to amend the defence in the terms as set out in an attached draft. The plaintiff's solicitors did not reply to that letter and the fourth named defendant issued the within motion fifteen months later.

3 The amended defence is a fully reworked defence rather than just the original defence with some additional paragraphs. It includes a preliminary objection that was not included in the original defence. The plaintiff contends that the amended defence raises new issues of controversy including an express plea that the personal injury summons contains no sustainable cause of action against the defendant.

4 The fourth named defendant relies on O.28 r.1 which provides as follows:

“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.”

5 The fourth named defendant contends that the amendment is necessary for the purpose of determining the real questions in controversy between the parties and relies on the decision of Gilligan J. in Croake v. Waterford Crystal Ltd [2005] 2 I.R. 388, which acknowledges that the court's primary consideration “must be whether the amendments are necessary for the purpose of determining the real questions of controversy in the litigation”.

6 The fourth named defendant contends that the amended defence arises from the same facts and does not alter the case that the plaintiff will be making at trial. It categorises the “new” preliminary objection as giving rise to legal argument only rather than any new facts, as occurred in D.G. Gross Premium Masterfund (In Liquidation) v. PNC Global Investment Service (Euro) Ltd now known as BMY Mellon Investments Service (International) Ltd [2016] IEHC 742 wherein McGovern J., in allowing the amendment sought, found that the amended defence sought to raise legal consequences flowing from matters already canvassed in the original defence.

7 The fourth named defendant says that it decided to seek to amend the defence on the advice of their senior counsel following a liability consultation. The plaintiff criticises them for failing to explain or to explain adequately why those matters were not pleaded earlier, and heavily criticises their delay in proceeding with this application fifteen months after their letter advising the plaintiff's solicitors of the need to amend the defence, which followed eight months after they filed the original defence. Counsel for the plaintiff urges the court to take account of the fourth named defendant's conduct in this regard, in determining how its discretion should be exercised.

8 The plaintiff counsel's main focus was on the prejudice she claimed her minor client will suffer if the amendments are allowed. She accepts that this is, to use the phrase of Clarke J. in Woori Bank v. KBD Ireland Ltd [2006] IEHC 156, logistical prejudice. She is concerned at the prospect of a motion to dismiss, the need to file a reply (which she says would not apply to the original defence)...