No Prejudice, No Adjournment:
The High Court’s Re-statement of the Test for Minor Amendments and Adjournment Requests under Order 28 RSC – Commentary on Howley v McMahon [2024] IEHC 677

1. Introduction

Howley v McMahon concerns an application by the Collector General of the Revenue Commissioners to amend a summary summons in tax recovery proceedings. The amendments were, on their face, minor— merely substituting the word “assessment” for “return” in respect of the 2012 tax year and adding a short recital that a notice of assessment issued on 15 November 2017. Yet the application triggered:

• A contested request for an adjournment by the defendant, whose solicitors sought to come off record;
• An objection to the defendant’s daughter (a non-party) addressing the court; and
• Submissions that allowing the amendment would prejudice a potential “very late appeal” to the Tax Appeals Commission.

Mr Justice Mark Heslin refused the adjournment and granted the amendments, delivering an ex tempore judgment that now provides authoritative guidance on:

1. The breadth of the court’s discretion under Order 28 rule 1 of the Rules of the Superior Courts (“RSC”);
2. The centrality of the absence of prejudice when considering amendments; and
3. The court’s inherent power to manage its own resources when an adjournment is sought on weak grounds.

2. Summary of the Judgment

The court made three principal orders:

1. Refusal of the adjournment application;
2. Grant of leave to amend the summary summons in the limited terms sought; and
3. No order as to costs (the plaintiff, though successful, did not seek costs).

Key findings include:

• The defendant had long notice of the amendment motion and produced no evidence—medical or otherwise—to justify an adjournment;
• The proposed amendments were identical in substance to earlier amendments consented to by the defendant for tax years 2013 and 2014;
• No cognisable prejudice arose; the defendant had never invoked any statutory appeal mechanism in the seven years since the 2017 assessments;
• The “interests of justice”, efficient use of scarce court resources, and the spirit of Order 28 favoured immediate determination.

3. Analytical Discussion

3.1 Procedural Timeline

3.2 Precedents and Legislative References

The judgment explicitly or implicitly relied on:

• Croke v Waterford Crystal Ltd [2004] IESC 97 – Supreme Court affirmation that amendments should be permitted where necessary to determine the real issues and absent prejudice.
• Woori Bank v KDB Ireland Ltd [2006] IEHC 156 (Clarke J) – Proposition that an amendment should only be refused where the new issue is “bound to fail”.
• Gladney v Grehan [2016] IEHC 561 – Outlines the three-tier regime for timely, late, and very late appeals to the Tax Appeals Commission.
• Order 28 rule 1 RSC – Statutory footing for amendments “at any stage … on such terms as may be just”.
• Section 933 Taxes Consolidation Act 1997 – Conditions for lodging a late or very late appeal against an assessment.
• Section 169 Legal Services Regulation Act 2015 – Codifies the presumption that costs follow the event, unless the court orders otherwise.

Notably, the court’s reliance on Croke and Woori Bank emphasises continuity in amendment jurisprudence, but Howley v McMahon is significant for contextualising those principles within the administrative taxation sphere and modern resource-management realities.

3.3 The Court’s Legal Reasoning

1. Wide Discretion under Order 28: The judge reaffirmed that the core test is whether the amendment is “necessary for the purpose of determining the real questions in controversy”. Minor wording changes that better articulate an unchanged claim invariably satisfy this test.
2. Lack of Prejudice: The defendant’s assertions of prejudice rested on hypothetical impediments to a “very late appeal”. The court dismantled this argument by pointing out:
   • Payment of assessed tax is a pre-condition to such an appeal—never satisfied here;
   • The defendant enjoyed years of opportunity to appeal and nine additional months since service of the present motion;
   • No evidential basis (affidavit or otherwise) was laid for any misunderstanding hindering an appeal.
3. Efficiency and Resource Management: Echoing recent Irish and UK authority on active case management, the judge held that limited court resources justify refusing adjournments designed only to postpone inevitable, uncontroversial orders.
4. Consistency of Party Conduct: Having consented to analogous amendments for 2013-2014, the defendant’s attempt to resist equivalent amendments for 2012 was portrayed as opportunistic and unsupported by evidence.
5. Costs: Although the plaintiff was “entirely successful”, it declined costs. The court noted that, under s.169 LSRA 2015, the usual order would favour the successful party, underscoring that mercy on costs came solely from the plaintiff’s concession, not any entitlement of the defendant.

3.4 Potential Impact

Howley v McMahon is likely to:

• Strengthen judicial resolve to deny adjournments where the moving party cannot show concrete prejudice, especially in tax recovery or commercial claims requiring only clerical corrections.
• Limit tactical objections to minor amendments: Practitioners will note that bare assertions of prejudice, unsupported by affidavit, will not suffice.
• Guide taxation litigation: The decision connects civil-procedure principles with the statutory taxonomy of “on-time/late/very late” appeals, signalling that the High Court will not permit Order 28 to become a back-door appeal forum.
• Encourage efficient case management by referencing the court’s inherent jurisdiction to protect scarce resources—language that may be invoked in future scheduling and adjournment debates.

4. Complex Concepts Simplified

5. Conclusion

Howley v McMahon is a concise yet influential judgment that:

• Re-emphasises that minor, non-prejudicial amendments should be freely allowed under Order 28;
• Shows courts will guard against strategic adjournments that drain judicial resources;
• Clarifies the interface between civil-procedure amendments and statutory revenue appeals—closing the door on using Order 28 to reopen stale tax disputes; and
• Serves as a procedural template: practitioners opposing an amendment must produce evidence of concrete prejudice, not speculation.

In the broader landscape of Irish civil practice, the judgment signals a pragmatic, efficiency-focused approach, ensuring that pleading technicalities do not thwart substantive justice or expend scarce court time.