Late-stage amendments adding new professional negligence claims refused absent expert evidence and where limitation and prejudice concerns arise

Introduction

In Lunney & Anor v Canny & Anor Practising in the Style and Title of Canny Corbett [2025] IEHC 592, the High Court (Barr J) addressed two procedural applications in a professional negligence action against solicitors. The proceedings arise from efforts to enforce substantial costs orders obtained by the plaintiffs (Leo and the late Mary Lunney) against Patrick O’Donnell following earlier litigation. The plaintiffs retained the defendant solicitors to enforce those costs against Mr O’Donnell’s Irish lands and (as alleged) his UK assets.

Two motions came before the Court:

• a motion by the now sole plaintiff (Mr Lunney) to compel the defendants to “accept” further and better replies he says were furnished pursuant to an order of Heslin J (7 November 2022); and
• a motion to amend the statement of claim to add new allegations of negligence/breach of contract: (i) failure to secure the plaintiffs’ registration as full owners of two Donegal folios (DL18504 and DL43904), allegedly resulting in the loss of a hostel income stream; and (ii) failure to take steps to enforce the costs judgment against Mr O’Donnell’s UK assets.

The defendants opposed the amendment, principally on the basis that the new claims were clearly statute-barred, unsupported by expert evidence as required for professional negligence, vague/irrelevant in parts, and prejudicial given the lapse of time since the retainer ended in 2019.

Summary of the Judgment

Barr J struck out the “acceptance of replies” motion as unnecessary because the defendants had already received the replies (albeit by an unusual route), and there is no rule requiring a court order compelling a party to “accept” replies. The Court expressly recorded that receipt did not amount to an acceptance of the truth or relevance of their contents.

The Court refused the plaintiff’s application to amend the statement of claim. Four independent grounds were identified:

1. Limitation: the proposed amendments would introduce entirely new claims, not arising from the same or substantially the same facts as originally pleaded, and are clearly statute-barred. The Court applied the principles in Stafford v Rice [2022] IECA 47 and related authorities.
2. Even assuming the Court possessed a discretion to allow amendments with a “no relation-back” rider (as mooted in Rossmore Properties v ESB [2014] IEHC 159 and Microsoft Ireland Operations Ltd v Arabic Computer Systems [2021] IEHC 538), such a course would be inappropriate here because of the significant prejudice to the defendants in having to reconstruct events and instructions from 2009–2019 at this remove.
3. Expert evidence: it is an abuse of process to mount professional negligence claims absent supportive expert evidence. The plaintiff’s 16 March 2020 opinion did not address the new allegations, and no liability expert report was produced to underpin those proposed claims (Reidy v National Maternity Hospital [1997] IEHC 143; Cooke v Cronin (1999) IESC 54; Whearty v Lanigan [2020] IEHC 443).
4. Pleading quality: many proposed amendments were vague, argumentative and/or irrelevant, and thus unsuitable for inclusion in a statement of claim.

The Court invited short written submissions (within two weeks) on the final order and costs, with a mention date fixed for 19 November 2025.

Analysis

Precedents Cited and Their Influence

• Stafford v Rice [2022] IECA 47: Collins J’s synthesis of the amendment principles is central. Two planks are pivotal:
  • The “general rule” (following Weldon v Neal (1887) 19 QBD 394) that amendments introducing a new claim will not be permitted when that claim would (or might) be statute-barred if commenced at the time of the amendment; a real possibility of a limitation bar suffices to refuse (see Mangan v Murphy; Smyth v Tunney [2009] IESC 5).
  • The exception allowing new causes of action that arise out of the same or substantially the same facts already pleaded (Krops v Irish Forestry Board Ltd [1995] 2 IR 113; Smyth v Tunney). This avoids unfair prejudice because the defendant has already had fair notice and opportunity to investigate the facts.
  Barr J explicitly treated this statement of principles as binding and determinative of the amendment issue.
• Weldon v Neal (1887) 19 QBD 394: The classic source for the limitation-based bar on late amendments introducing “new claims.” Its enduring rationale is to prevent a plaintiff from evading a defendant’s accrued limitation defence via the relation-back doctrine.
• Mangan v Murphy and Smyth v Tunney [2009] IESC 5; [2009] 3 IR 322: Irish authorities illustrating that it is not necessary to establish definitively that a new claim is statute-barred; a real possibility of a bar is enough to refuse amendment. Smyth also articulates the “same facts/substantially the same facts” test: new facts may clarify the original claim but cannot be added to found an entirely new factual matrix.
• Krops v Irish Forestry Board Ltd [1995] 2 IR 113: A plaintiff who sued in negligence for a fatal accident was allowed to add a nuisance claim after the limitation period because the new cause of action arose from precisely the same facts already pleaded. Krops exemplifies the narrow exception: new label, same facts.
• Rossmore Properties Ltd v ESB [2014] IEHC 159 and Microsoft Ireland Operations Ltd v Arabic Computer Systems [2021] IEHC 538: These decisions contain dicta suggesting a court may, in an appropriate case, permit an amendment to take effect only from the date of the order (i.e., without relation-back), thereby preserving a limitation defence. Collins J in Stafford noted those dicta but did not rule on the point. Barr J acknowledged the possibility but found that even on that assumption the prejudice in this case warranted refusal.
• Reidy v National Maternity Hospital [1997] IEHC 143; Cooke v Cronin (1999) IESC 54; Whearty v Lanigan [2020] IEHC 443: These authorities condemn advancing professional negligence claims without a supportive expert liability opinion. The courts view such pleading as an abuse of process because professional negligence generally requires expert testimony to establish breach and causation against the standard of the profession. Barr J relied on this line to refuse the amendments that lacked expert underpinning.
• Order 28, Rules of the Superior Courts: Confers a broad discretion to permit amendments so that cases are decided on their merits, but that discretion is consistently circumscribed by limitation principles, the prohibition on prejudice, and the requirement that pleadings be concise, relevant, and supported.

Legal Reasoning

1) Amendments, Relation-Back, and Limitation

The Court started from the orthodox position: an allowed amendment ordinarily “relates back” to the date of issue, which risks extinguishing a defendant’s accrued limitation defence. To avoid that prejudice, the law generally refuses amendments that would introduce a new claim that is now time-barred or even arguably so. The Court applied the Stafford/Weldon/Mangan/Smyth framework and held:

• The proposed amendments were not refinements of the pleaded case; they sought to introduce new allegations that the solicitors were negligent for not:
  • securing registration of the plaintiffs as owners on folios DL18504 and DL43904; and
  • taking steps in the UK to enforce the costs judgment against Mr O’Donnell’s assets.
• Those allegations require a different factual matrix (instructions alleged, actions/inactions, and advices over 2009–2019). They do not arise out of the “same or substantially the same facts” as the originally pleaded failure to pursue well-charging and sale orders on the Irish judgment mortgage within the period after Mr O’Donnell’s death that, it is alleged, led to a limitation bar.
• Because they are new claims introduced years after the expiry of the relevant limitation periods (and at minimum there is a real possibility they are statute-barred), the general rule applies: the amendment must be refused.

2) The “no relation-back” rider

The Court confronted the unsettled question whether, as suggested in Rossmore and Microsoft, it could permit an amendment but specify that it takes effect only from the date of the order, thereby preserving the limitation defence for the new claim. Barr J expressly proceeded on the assumption (without deciding) that such a power may exist, but held that even then it would not be appropriate to grant the amendment because of the substantial prejudice to the defendants in having to reassemble historical evidence (instructions and advices from 2009–2019) so long after their retainer ended (2019) and long after the original statement of claim (2021) had apparently defined the case they had to meet.

3) Expert evidence is a gating requirement for professional negligence claims

Consistent with Reidy, Cooke, and Whearty, the Court treated supportive expert liability evidence as a threshold requirement for pleading professional negligence. The plaintiff’s 2020 opinion did not address the new allegations at all. Absent such an expert opinion, permitting the late introduction of new allegations of professional negligence would amount to an abuse of process. This constituted a discrete and sufficient reason to refuse the amendments.

4) Prejudice and pleading quality

The Court also found that:

• allowing the new claims at this stage would unfairly prejudice the defendants because they would be required to investigate and defend matters stretching back 6–16 years, contrary to the reasonable expectation (since 2021) that the claim was confined to the originally pleaded case; and
• many of the proposed amendments were objectionable in form—vague, argumentative, or irrelevant—and thus unsuitable for inclusion in a statement of claim.

5) The “acceptance of replies” motion

On the procedural motion concerning replies to particulars, the Court noted:

• There is no provision in the Rules for an order compelling a party to “accept” replies. Service is accomplished by recognised methods; once replies are received, the remedy is unnecessary.
• As the defendants acknowledged receipt (via exhibits to the plaintiff’s affidavit), the motion was moot and was struck out.
• Receipt did not equate to acceptance of truth or relevance, especially where some replies referred forward to unallowed amendments.

Impact

The judgment has several practical consequences for litigation and professional negligence practice in Ireland:

• Consolidation of amendment jurisprudence: The decision firmly applies Stafford v Rice and underscores that late amendments introducing new causes of action will be refused where there is a real possibility of a limitation bar. The exception for new causes of action arising from the same or substantially the same facts is narrow and tightly policed.
• Expert report as gateway: Professional negligence allegations (including against solicitors) should not be pleaded without a supportive expert liability opinion addressing the specific impugned acts/omissions. Attempting to introduce such claims by amendment without expert support will likely be refused as an abuse of process.
• Prejudice lens sharpened: Even if a “no relation-back” rider is theoretically available, courts will refuse amendments that require defendants to investigate long-past instructions and file histories, particularly after a long lapse post-retainer and after the plaintiff has defined their case in a prior statement of claim.
• Pleading discipline: Courts continue to scrutinise the form and relevance of proposed amendments. Vague, argumentative, or narrative material will be rejected. Pleadings must identify material facts with clarity.
• Procedural economy in interlocutory motions: Motions seeking to compel “acceptance” of replies are unnecessary where replies have been received; ordinary service suffices, and receipt does not concede truth or relevance.
• Practice pointer for lay litigants and practitioners:
  • Move promptly to amend if a pleading is thought to be incomplete; delay compounds limitation and prejudice problems.
  • Ensure any additional professional negligence allegations are supported by a tailored expert report before seeking to plead them.
  • Confine amendments to material facts; exclude commentary and argument.
  • Do not assume the Court will permit “backfilling” of an entirely new factual case years later, even with a prospective-only (“no relation-back”) order.

Complex Concepts Simplified

• Amendment of pleadings: Parties can ask the Court to change their pleadings (e.g., statement of claim) to correct or add material. Generally allowed to facilitate determination on the merits, but constrained by limitation rules and fairness.
• Relation-back: An allowed amendment is usually treated as if it had been part of the pleading from the start. This can nullify a limitation defence. To avoid unfairness, courts typically refuse amendments introducing new, time-barred claims.
• Same or substantially the same facts: A new cause of action may be allowed after time if it rests on the same factual matrix already pleaded (e.g., adding nuisance to an existing negligence claim about the same incident). New facts cannot be introduced to found a wholly different case.
• Statute of Limitations defence: A defendant’s right not to face a “stale claim” after a set period. The law protects that right by restricting late amendments that would undermine it.
• Professional negligence and expert evidence: Claims that professionals breached their duty typically require an expert opinion to show what a competent professional would have done and how the defendant fell short, causing loss. Pleading such claims without expert support is generally impermissible.
• Judgment mortgage; well charging order; order for sale: A judgment mortgage is a registration of a judgment debt as a charge on a debtor’s land. A well charging order is a declaration that the creditor’s charge is valid and “well charged” on the land. An order for sale authorises the sale of the land to satisfy the debt.
• Notice for particulars; further and better particulars: Procedural devices by which a party seeks clarification of the other side’s pleadings. Replies provide detail of material facts. Service is by recognised means; there is no requirement that the recipient “accept” them.

Conclusion

Lunney v Canny is a careful and comprehensive reaffirmation of the limits on amending pleadings to introduce new professional negligence claims at a late stage. The High Court applied the Stafford v Rice framework to refuse amendments that would introduce new, arguably time-barred claims based on a different factual substratum, emphasised that professional negligence allegations cannot be advanced without a supportive expert report, and underscored the centrality of prejudice and pleading discipline. While acknowledging dicta that might allow a “no relation-back” order, the Court held that—on these facts—the prejudice and delay were dispositive.

The decision offers clear guidance: if a party believes their original pleading omits claims, they must act promptly, ensure those claims arise from the same facts or else accept the limitation consequences, and obtain targeted expert support before pleading professional negligence. Procedural motions should be purposeful; where replies have been served and received, a compulsion order is unnecessary. Against that backdrop, the Court’s orders—striking out the “acceptance” motion and refusing leave to amend—fit squarely within established principle and promote fairness and efficiency in civil litigation.