Accrual by “Real and Meaningfully Measurable Loss” in Solicitor‑Negligence‑for‑Delay and Validity of Firm‑Named Appearances: High Threshold for Strike‑Out under Amended Order 19

Introduction

This judgment arises from a strike‑out application brought by a firm of solicitors (the defendants) against their former client (the plaintiff), who alleges professional negligence in the conduct of earlier litigation (the “principal proceedings”: Killeen v O’Sullivan, HC 2006/777P). The plaintiff’s original action—against different solicitors—was dismissed for inordinate and inexcusable delay in 2022. He then sued his former solicitors for negligently failing to progress that action. The defendants sought to strike out these professional negligence proceedings as frivolous/vexatious, disclosing no reasonable cause of action, and being bound to fail, principally on the basis that the claim is statute‑barred under s.11 of the Statute of Limitations 1957.

Before engaging with the substantive limitation issue, Simons J. addressed two procedural objections raised by the plaintiff: (i) that the defendants’ memorandum of appearance was invalid because it was signed in the name of the firm rather than an individual solicitor; and (ii) that the defendants’ notice of motion was invalid due to a clerical error in the return date and an illegible signature. The court also had to deal with satellite motions, including an application to permit an unqualified individual to address the court as a McKenzie Friend and a motion objecting to the defendants’ registration as an LLP.

The judgment therefore speaks to four interlocking areas: the recalibrated strike‑out jurisdiction after the 2023 amendment to Order 19 RSC; limitation law in solicitor‑negligence-for-delay cases and when a cause of action accrues; the validity of firm‑signed appearances under Order 12; and procedural proportionality in addressing technical irregularities. It also reiterates standards for McKenzie Friends and the limited role of expert reports at the threshold stage of solicitor‑negligence claims about litigation conduct.

Summary of the Judgment

• Strike‑out refused: The defendants failed to show that the limitation defence will “clearly” succeed such that the claim is bound to fail or has no reasonable chance (paras. 52–62, 68). The accrual date is a complex, fact‑sensitive issue better resolved at trial. The plaintiff’s alternative argument of fraudulent concealment under s.71 is also a mixed question of fact and law not suitable for summary disposal.
• Order 12 RSC—firm‑named appearances are valid: Reading Order 12 with Order 125 (singular includes plural), a memorandum of appearance may properly identify a firm/partnership (including an LLP) as the defendant’s solicitors; there is no requirement to name an individual solicitor (paras. 21–26, 69). Even if wrong, any defect would have been voidable and cured by acquiescence and absence of prejudice (paras. 27–31).
• Notice of motion technicalities rejected: The clerical error in the year on the return date and an illegible signature were immaterial; the plaintiff attended, participated and suffered no prejudice (paras. 33–35, 70).
• No immutable expert‑report requirement: In solicitor‑negligence claims focused on litigation management (here, delay), expert evidence is not invariably required at the outset; the proper test is whether a reasonable basis exists (Mangan v Dockeray) (paras. 63–66).
• LLP point fails: LLP authorisation does not retrospectively limit pre‑authorisation liabilities (s.123, LSRA 2015) (para. 67).
• McKenzie Friend request refused: Criteria in Pepper Finance not met; court cautions litigants in person against unqualified advisers promoting spurious technical points (paras. 17–18, 71–72).
• Costs: Provisional view—each side to bear their own costs, absent further submissions (paras. 73–75).

Analysis

Precedents Cited and Their Influence

• Keohane v Hynes [2014] IESC 66: Central to the court’s articulation of the strike‑out threshold. The Supreme Court emphasised that strike‑out/dismissal as “bound to fail” is an abuse‑of‑process control to be “sparingly exercised” and is not a device for early resolution of factual or legal disputes. This language is echoed in the amended Order 19, rule 28 and frames the lens through which limitation defences are assessed at the strike‑out stage (paras. 41–45).
• Lopes v Minister for Justice [2014] IESC 21: Cited by analogy for the proposition that litigation can take “unusual turns” at trial; courts should be slow to conclude there is “no reasonable chance” of success before discovery, interrogatories or witness examination (para. 45).
• Jeffrey v Minister for Justice [2019] IESC 27, [2022] 2 IR 635: Reinforces that summary procedures are inappropriate for non‑straightforward legal questions (para. 46). The accrual of loss in solicitor‑negligence for delay is precisely such a nuanced issue.
• Smith v Cunningham [2023] IESC 13, [2024] 2 IR 314: Recognised the inherent complexity in pinpointing accrual in professional negligence (para. 51). That observation underwrites the refusal to resolve accrual on affidavit in this case.
• Mangan v Dockeray [2020] IESC 67: Supplies the “reasonable basis” standard for commencing professional negligence proceedings; expert evidence is not rigidly required at the threshold, especially where the alleged negligence concerns litigation management rather than technical skill in a specialised field (paras. 63–66).
• Behan v McGinley [2011] 1 IR 47: Distinguished. In Behan the loss had clearly crystallised after an adverse Supreme Court outcome; that offers little guidance on accrual in the delay context where loss may pre‑date dismissal if the case has already become unanswerably dismissible (para. 61).
• Donegal County Council v Quinn [2025] IESC 19: Although addressing a different statutory term (“person”), the Supreme Court’s reasoning supports the permissibility of firm‑level signatures on court documents and the purposive reading of procedural rules. Simons J. invokes it to justify reading Order 12 with Order 125 and to emphasise the importance of asking not only what the words mean but why they bear that meaning (paras. 25–26).
• Pepper Finance Corporation (Ireland) v Moloney [2022] IECA 287: Provides the criteria governing when a McKenzie Friend may be permitted to address the court; none were met here (para. 18).

Legal Reasoning

1) The recalibrated strike‑out jurisdiction under the amended Order 19, rule 28

The 2023 amendment (SI No. 456 of 2023) expressly empowers courts to strike out claims that disclose no reasonable cause of action, amount to an abuse of process, are bound to fail, or have no reasonable chance of succeeding (para. 37). Simons J. treats this as a codification of the inherent jurisdiction historically deployed with restraint (paras. 41–45). Critically:

• The court may look beyond the bare pleadings to affidavits (para. 38), and consider limited merits;
• But the test remains stringent: summary disposal is improper where issues are factually or legally complex, or where discovery and oral evidence could change the landscape (paras. 45–46).

Applied to limitation defences, this means a defendant must show there is no reasonable chance the plaintiff can meet the plea of statutory bar (para. 48). That is a deliberately higher threshold than trying a preliminary issue.

2) Limitation in solicitor‑negligence-for-delay: the accrual problem

Both sides advanced bright‑line accrual theories the court found unpersuasive:

• Plaintiff’s position: accrual only on the date the principal proceedings were actually dismissed (22 November 2022). Simons J. notes this would make accrual contingent on a third party’s decision to bring (or delay) a dismissal motion (paras. 56–58), which is conceptually problematic.
• Defendants’ position: accrual upon termination of retainer (26 March 2015). The judge rejects this as conflating breach with loss; termination may cap the period of duty, but it does not necessarily mark when a “real and meaningfully measurable loss” is sustained (paras. 59–60).

The court instead articulates a principled focus: when did the plaintiff suffer a real and meaningfully measurable loss? In delay‑based litigation negligence, that may be when the underlying proceedings had, by accumulated delay, already become unanswerably vulnerable to dismissal—i.e., before any motion is brought, and not tethered to termination of retainer (paras. 57–60). On the present record, the court cannot safely determine when that point occurred (para. 58). That is a trial issue. The alternative postponement argument under s.71 (fraudulent concealment) is also unsuitable for summary resolution (paras. 49–50, 62).

3) Firm‑named memoranda of appearance under Order 12 RSC

Order 12 speaks of a “solicitor,” but Order 125 provides that the singular includes the plural. Reading the rules purposively, Simons J. holds that where a defendant is represented by a firm/partnership (including an LLP), the memorandum of appearance may properly bear the firm’s registered name and address (paras. 21–26, 69). Reasons include:

• It serves the rule’s purposes: confirming representation and providing an effective service address (including DX and email domains tied to the firm) (para. 24).
• It avoids needless re‑filing whenever personnel change (para. 24).
• Comparable acceptance of firm‑level signatures exists elsewhere (Donegal CC v Quinn) (para. 25).

Even if the plaintiff were correct that an individual must be named, the defect would be voidable, not void. It was accepted and filed, deemed valid by Barr J., never appealed, and any challenge would be out of time and barred by waiver/acquiescence under Order 124 (paras. 27–31). No prejudice was shown. Indeed, the plaintiff treated the appearance as valid by delivering a statement of claim and proceeding to seek default judgment in default of defence (paras. 28–31).

4) Technical objections to the notice of motion

A clerical error in the year of the return date on the notice of motion, and an illegible signature, did not discommode the plaintiff who attended and participated (paras. 33–35, 70). The irregularity was de minimis and cured by acquiescence; no prejudice was suffered.

5) Expert evidence at the threshold of solicitor‑negligence

Relying on Mangan v Dockeray, the High Court confirms there is no rigid prerequisite to file an expert report before issuing or resisting a strike‑out in a professional negligence action. The governing criterion is whether a “reasonable basis” exists for the claim (paras. 63–65). Where the alleged negligence concerns litigation management (e.g., failure to progress proceedings), courts do not typically need expert evidence to understand acceptable standards; contrast medical negligence where expert testimony is integral (para. 65).

6) LLP authorisation does not retrospectively limit liability

The plaintiff’s objection to the defendants’ subsequent registration as an LLP is “hopelessly misconceived”: s.123 LSRA 2015 preserves partners’ personal liability for pre‑authorisation acts (para. 67).

7) McKenzie Friends and the risk to litigants in person

Applying Pepper Finance, the court refused to allow an unqualified individual to address the court on the plaintiff’s behalf (para. 18). Simons J. issues a broader warning: unqualified “charlatans” advancing spurious technical arguments can derail the proper presentation of a litigant’s case and do them a disservice (paras. 71–72). The “firm‑name on appearance” objection is singled out as a paradigmatic red herring.

Impact

• Limitation defences in solicitor‑negligence-for-delay: Defendants face a high bar at the strike‑out stage. Where accrual depends on when delay rendered proceedings unanswerably dismissible—and where s.71 postponement is pleaded—courts will typically require a trial or a properly framed preliminary issue, not summary dismissal. Pleadings and affidavits should engage with concrete chronology and the turning point at which loss became “real and meaningfully measurable.”
• Strategic choice: strike‑out vs. preliminary issue: The judgment underscores that limitation disputes of this kind are rarely apt for strike‑out. Parties seeking early determination should consider applying for a preliminary issue on an agreed or assumed facts basis rather than invoking Order 19, rule 28.
• Procedure: appearances by firms/LLPs: This decision should largely put to rest arguments that a memorandum of appearance must identify an individual solicitor. The purposive reading of Order 12, anchored in Order 125, promotes stability in service and reduces needless re-filings as personnel change.
• Technical irregularities and proportionality: Harmless defects (e.g., typographical errors in return dates) are unlikely to vitiate motions where no prejudice ensues and the opposing party participates. Order 124’s waiver/acquiescence doctrine remains robust.
• Professional negligence pleading practice: For litigation‑management negligence, the absence of an expert report at the outset will not, without more, justify strike‑out. Plaintiffs should still ensure a pleaded “reasonable basis,” while defendants should focus early disclosure and targeted interlocutory steps to test the case’s factual underpinnings.
• Guidance for litigants in person: The judgment provides a clear cautionary note on the limits of McKenzie Friends and the dangers of relying on unqualified advisers to promote technical gambits that distract from the merits.

Complex Concepts Simplified

• Strike‑out (Order 19, rule 28): A mechanism to end a case early if it is obviously hopeless—e.g., discloses no cause of action, is an abuse of process, or is bound to fail. After the 2023 amendment, the court may consider affidavit evidence, but the bar remains high.
• Statute‑barred: A claim brought after the legally prescribed time limit (here, generally six years for tort/contract under s.11, 1957 Act). A statute‑barred claim is ordinarily defeated as a matter of law.
• Accrual of cause of action: The moment when all elements of a claim exist so time starts to run. In negligence, this is when a breach causes a “real and meaningfully measurable loss,” not necessarily when the breach occurred or when final damage becomes undeniable.
• Fraudulent concealment (s.71, 1957 Act): If a defendant’s fraud conceals the right of action, the limitation clock does not start until the plaintiff discovered, or could with reasonable diligence have discovered, the fraud. This is a fact‑intensive inquiry.
• Memorandum of appearance: The document by which a defendant acknowledges service and confirms representation details for service of further documents. The High Court confirms it may properly be in the firm’s name.
• Void vs. voidable irregularity: A void act has no legal effect; a voidable irregularity is effective unless and until set aside. Many procedural defects are voidable and may be cured by acceptance, delay, or lack of prejudice.
• Order 124 (waiver/acquiescence): A party who becomes aware of an irregularity must act promptly; proceeding without objection may waive the right to challenge it.
• McKenzie Friend: A support person who may assist a self‑represented litigant but usually cannot address the court. Permission to do more is exceptional and requires specific criteria to be met.
• LLP (Limited Liability Partnership): A partnership structure recognised by the LSRA 2015. Authorisation does not erase personal liabilities incurred before authorisation (s.123).

Conclusion

Killeen v Higgins [No. 2] is a careful, practice‑oriented decision with three systemic messages. First, the amended Order 19, rule 28 does not relax the strike‑out threshold; it codifies and preserves a restrained, abuse‑of‑process jurisdiction. Where limitation turns on nuanced accrual questions—especially in solicitor‑negligence-for-delay—the court will not short‑circuit a trial unless it is clear the claim cannot succeed. The court’s emphasis on “real and meaningfully measurable loss” as the organising concept for accrual marks a useful clarification for this sub‑field and resists simplistic anchors like “retainer termination” or “actual dismissal.”

Second, the court’s purposive reading of Order 12, informed by Order 125 and consistent with modern legal practice, confirms the validity of firm‑named memoranda of appearance. That clarification should limit unproductive procedural skirmishing and promote efficient service and case management.

Third, the judgment models proportionality: minor technical defects that cause no prejudice will not derail proceedings; expert reports are not invariably needed at the threshold for litigation‑management negligence; and unqualified advisers peddling technicalities pose real risks to litigants in person. Together, these threads reinforce a pragmatic, merits‑focused civil process while preserving fairness to both sides.

The immediate result is that Mr. Killeen’s negligence claim survives to trial, where the court will determine, on full evidence, when loss accrued and whether any fraudulent concealment postponed time. The broader significance lies in the guidance offered to litigants and practitioners on the appropriate forum and method for resolving limitation defences, the proper form of appearances, and the disciplined use of strike‑out powers under the re‑cast Order 19.