Expert Evidence and Demonstrable Loss as Gatekeepers: High Court clarifies early strike‑out of solicitor‑negligence claims under Order 19, rule 28

Introduction

In Zapryanova v Rochford Gibbons Solicitors & Ors [2025] IEHC 534, O’Higgins J dismissed, at a preliminary stage, professional negligence proceedings brought by a personal injuries plaintiff against three former solicitor firms (the first, second and third defendants). Each of those defendants moved under Order 19, rule 28 of the Rules of the Superior Courts (as substituted by S.I. No. 456/2023) and/or the court’s inherent jurisdiction to strike out the claims as disclosing no reasonable cause of action, being an abuse of process, bound to fail, or having no reasonable chance of success. The fourth defendant did not bring a strike‑out motion.

The underlying personal injuries action arises from a severe road traffic collision on 13 November 2017 in County Dublin, caused by a third‑party driver insured by AXA. Liability has long since been admitted; the underlying action is for assessment of damages only. The plaintiff cycled through four legal representatives between 2017 and 2021, and later sued the first three firms for alleged professional negligence, fiduciary breach and (as against the second) deceit, focusing on s. 8 Civil Liability and Courts Act 2004 letters of claim, particulars in a PIAB “Form A”, interactions with An Garda Síochána, and the issuance and content of draft High Court proceedings.

The High Court’s judgment offers structured guidance on four intersecting areas:

the scope and operation of the “new” Order 19, rule 28; and the high threshold to strike out;
the centrality of demonstrable loss or prejudice in solicitor‑negligence claims, especially where the underlying PI action persists and liability is admitted;
the practical requirement for independent expert evidence before launching professional negligence proceedings against solicitors;
the proper understanding of routine personal injuries processes (s. 8 letters, PIAB “Form A”, and the solicitor–counsel roles).

Summary of the Judgment

O’Higgins J struck out the plaintiff’s claims against the first three defendants on all four alternative grounds in O. 19, r. 28(1): the claims disclosed no reasonable cause of action; amounted to an abuse of process; were bound to fail; and had no reasonable chance of success. The Court’s key conclusions included:

The plaintiff identified no cognisable loss or prejudice attributable to any alleged act or omission by the defendants, a “major stumbling block” where the underlying personal injuries action remains extant and liability is admitted.
The plaintiff chose not to obtain independent expert evidence to substantiate allegations of professional negligence, despite an adjournment to facilitate same. In line with Loomes and earlier authority, launching a professional negligence claim without first ascertaining reasonable grounds—typically via expert opinion—constitutes an abuse of process. The failure was fatal in this case.
Complaints about s. 8 letters and PIAB “Form A” were misconceived: s. 8 letters need not be exhaustive or client‑pre‑approved; a clerical omission in a PIAB form corrected on request cannot ground negligence or deceit, absent consequences.
The plaintiff’s attempt to save the proceedings via hypothetical future amendments (including to add GDPR/Data Protection claims) failed. The “save by amendment” principle does not extend to introducing an entirely new case at strike‑out stage, particularly where no precise amendment is proposed and the new issues lie outside the pleaded case.
The Court rejected late applications to cross‑examine deponents and to question the validity/constitutionality of O. 19, r. 28 in these motions.
Given the Court of Appeal’s earlier decision in Zapryanova v LSRA [2024] IECA 198, the plaintiff’s misapprehensions about the respective roles of solicitor and counsel and the propriety of issuing proceedings to protect limitation were already authoritatively addressed and found entirely misconceived.

The Court emphasised that the strike‑out jurisdiction, though exceptional and to be exercised sparingly, was properly engaged here. It observed that terminating these claims now ultimately serves the plaintiff’s interests by avoiding unnecessary costs exposure while the underlying personal injuries assessment proceeds.

Detailed Analysis

Precedents Cited and Their Influence

Delany & McGrath, Civil Procedure (5th ed., 2024), para 16.02: confirmed that the revised O. 19, r. 28 amalgamates prior strike‑out jurisdictions and enables striking out of claims/defences with no reasonable prospect of success or which constitute abuse of process. The Court anchored its jurisdiction within this broadened, but still cautiously‑exercised, framework.
Aer Rianta v Ryanair [2004] 1 IR 506 (Denham J): the strike‑out jurisdiction is to be used sparingly; courts should exercise caution. Repeated in Gaultier v Reilly [2024] IEHC 226 (Cregan J) and Gleeson v Ireland [2024] IEHC 415 (Dignam J). The High Court adopted these guardrails while nonetheless concluding they were satisfied here.
Gleeson v Ireland [2024] IEHC 415: summarised five overarching principles (sparingly used; high threshold; take plaintiff’s case at its high‑water mark; must be satisfied plaintiff cannot succeed; consider whether amendment/discovery/trial could improve case). O’Higgins J explicitly applied these principles.
James Guerin v Gemma O’Doherty [2025] IEHC 140 (Phelan J): re‑affirmed the high onus on a strike‑out movant; this underpinned the Court’s methodology of taking the plaintiff’s case at its height before finding it still unsustainable.
Sun Fat Chan v Osseous [1992] 1 IR 425; Mohan v Revenue Commissioners [2025] IEHC 63 (Simons J); Beades v KBC Mortgage Finance UC [2025] IEHC 363 (Dignam J): the “save by amendment” principle applies where a deficiency in pleading masks a good cause of action; it does not authorise adding an entirely new claim to avoid strike‑out. The Court relied on Beades to reject attempts to fold in new GDPR‑based complaints at the eleventh hour.
Loomes v Rippington & Ors [2020] IEHC 237 (Meenan J), citing Cooke v Cronin & Neary [1999] IESC 54 and Connolly v James A Casey & Laura Murphy [1998] IEHC 90: commencing professional negligence actions without first ascertaining reasonable grounds is an abuse of process. This dictum was applied decisively: the plaintiff’s failure/refusal to obtain independent expert evidence was “fatal.”
G. v DPP [1994] 1 IR 374: test for leave in judicial review context referenced by the Court of Appeal in prior related litigation, reinforcing that speculative or misconceived complaints do not cross the arguability threshold.
Golder v UK (1975) 1 EHRR 524: access to court must be “practical and effective.” The Court reconciled this with O. 19, r. 28: the right of access co‑exists with a measured power to strike out abusive or unwinnable claims.
Zapryanova v LSRA [2024] IECA 198 (Binchy J): addressed the plaintiff’s grievances around counsel’s role and the issuance of proceedings pre‑limitation where the client was unresponsive. The CA held the advice to issue was “eminently sensible, reasonable and prudent,” and that the plaintiff’s misunderstandings about solicitor/counsel roles were misconceived. O’Higgins J draws on this to underscore that the actions taken to protect the plaintiff’s limitation position cannot ground misconduct or negligence.
Zapryanova v Commissioner of An Garda Síochána [2024] IEHC 594 (Heslin J): leave refused; the Court was “unimpressed” by serious, unsupported allegations; noted the applicant’s misapprehension about entitlement to dictate the form of documents. O’Higgins J observed a similar pattern of over‑reading clerical issues as sinister, and of making serious allegations without evidence, reinforcing the abuse‑of‑process finding.

Legal Reasoning and Application

The O. 19, r. 28 threshold (post‑S.I. 456/2023): The Court accepted the jurisdiction is exceptional and rights‑sensitive, took the plaintiff’s case at its high‑water mark, and considered whether any amendment, discovery or trial could salvage it. Even on that charitable footing, the claims were found unsustainable under each of the four r. 28 heads.
No demonstrable loss/prejudice: The underlying personal injuries action is live and liability is admitted; the case is assessment‑only. The plaintiff failed to identify any concrete way her claim value or position was worsened by the defendants’ acts/omissions. In solicitor‑negligence, causation and damage are essential; the absence of actual prejudice was “a major stumbling block” common to all three claims.
Need for independent expert support in professional negligence claims: The plaintiff neither obtained nor wished to obtain expert opinion, despite a generous adjournment. Applying Loomes (and Cooke/Connolly), the Court held that commencing such actions without first verifying reasonable grounds—ordinarily via independent expert evidence—constitutes an abuse of process. The failure was determinative here. The Court expressly left open, in a suitable case, whether Law Society guidance could suffice, but not on these facts.
Section 8 Civil Liability and Courts Act 2004 letters: The s. 8 letters sent by the first defendant complied with the statute. The law does not require exhaustive pleading‑level particulars or client pre‑approval for such routine notices. Even if a timing or content criticism were arguable (it was not), the plaintiff showed no prejudice—particularly as the PI defendant later admitted liability and raised no s. 8 objection.
PIAB “Form A” and alleged deceit: A missing location field in the initial “Form A” (later supplied) could not ground negligence, still less deceit. PIAB’s refusal to assess under s. 17 of the 2003 Act arose from “interaction between one or more injuries arising from different causes,” not from form completion; and PIAB raised no concern about misleading content. The Court rejected attempts to recast clerical omissions into conspiracies.
Solicitor–counsel roles and limitation practice: Echoing the Court of Appeal’s earlier ruling, the High Court affirmed that counsel’s advice to issue proceedings—after a prolonged period of client non‑engagement—to protect the limitation position is prudent and in the client’s best interests. It is not misconduct or negligence to avoid “eleventh hour” issuance; best practice is to issue comfortably within the time limit.
Proposed amendments cannot introduce a new case: Relying on Beades, Sun Fat Chan and Mohan, the Court refused to entertain a theoretical amendment to add fresh GDPR/Data Protection allegations at strike‑out stage. The “save by amendment” principle cures pleading deficiencies; it does not license an entirely new action or unparticularised, unpleaded claims to defeat a strike‑out motion.
Procedural rulings: Late applications to cross‑examine affidavit deponents were refused for lack of timely groundwork and absence of material conflict. The constitutional/validity challenge to O. 19, r. 28 was out of place in the motions and legally undeveloped; in any event, access‑to‑court rights co‑exist with proportionate strike‑out powers.
Pattern of unsupported serious allegations: The Court found a pervasive tendency to infer sinister intent from clerical imperfections and to advance serious accusations without evidential foundation. This pattern weighed in the abuse‑of‑process assessment and underscored the need for expert substantiation before suing professionals.

Impact and Significance

The decision is an important application and clarification of the post‑2023 strike‑out regime in professional negligence actions against solicitors. Its key practical effects include:

Early filtration of unmeritorious solicitor‑negligence claims: Where the underlying action is live (especially assessment‑only) and liability is admitted, plaintiffs must show concrete prejudice caused by the impugned conduct. Absent such damage and absent expert support, claims are at real risk of early dismissal under O. 19, r. 28.
Expert evidence as a de facto gatekeeper: While not expressed as an absolute rule of law, the judgment strongly reinforces that independent expert opinion is generally necessary before suing legal professionals. Courts will treat the failure to obtain it—particularly when an adjournment has been given—as abusive.
Boundaries of the “save by amendment” principle: Plaintiffs cannot resist strike‑out by proposing to bolt on new, unpleaded causes of action (e.g., GDPR claims) at the hearing. The principle is confined to curing defective articulation of an existing cause of action.
Everyday PI practice endorsed: The Court validated routine approaches: concise s. 8 letters not requiring client micromanagement; pragmatic PIAB engagement; and early issuance of proceedings to avoid limitation risk when clients are unresponsive.
Litigant conduct matters: Courts will be alert to unsupported allegations, conspiratorial framing of clerical errors, and disproportionate focus on minor paperwork irregularities. Such patterns can tip a case into abuse of process.
Cost and proportionality benefits: The Court expressly noted that striking out now serves the plaintiff’s own interests by limiting costs exposure, while the substantive PI assessment continues unimpeded.

Complex Concepts Simplified

Order 19, rule 28 (RSC): A procedural rule allowing the High Court to strike out claims that disclose no reasonable cause of action, are abusive, are bound to fail, or have no reasonable chance of success. The amended rule (2023) consolidates prior strike‑out powers and allows limited affidavit evidence to be considered.
“Bound to fail” vs “no reasonable chance of success”: Both are high thresholds. The Court must be satisfied the plaintiff cannot succeed—even taking the case at its strongest—and that no amendment, discovery, or trial evidence would alter that.
Abuse of process: Using court process for claims with no reasonable basis (e.g., suing professionals without expert support; making serious allegations without evidence) or in a way that is unfairly oppressive or wasteful.
Section 8 Civil Liability and Courts Act 2004 letter: A short, early notice stating the nature of the wrong to the alleged wrongdoer. It need not read like pleadings. A late or imperfect letter may affect costs but rarely founds negligence absent actual prejudice.
PIAB “Form A”: The standard application to the Personal Injuries Assessment Board to assess damages. Minor clerical errors corrected on request do not ordinarily prejudice a claim or imply deceit.
PIAB authorisation (s. 17 of the 2003 Act): Where PIAB declines to assess (e.g., interacting causes of injury), it issues an authorisation enabling court proceedings. That says nothing about liability for the accident itself.
Solicitor vs counsel roles: The solicitor instructs counsel and manages the file; counsel advises on law, drafts pleadings, and advocates. If a client becomes unresponsive near limitation, it can be prudent to issue proceedings to protect the claim—this is not misconduct.
Professional negligence against solicitors: A plaintiff must show duty, breach, causation, and damage. The underlying claim must be demonstrably worsened by the breach. Independent expert evidence is generally needed to establish breach and causation.
Tort of deceit: Requires a knowingly false representation intended to mislead, reliance, and resulting loss. It is a high bar; clerical omissions or corrected forms will not meet it.
Mootness: A judicial review will be refused where the applicant has already received the relief/information sought; courts do not decide academic disputes.

Application to Each Defendant (Key Points)

First Defendant: Rochford Gibbons Solicitors

s. 8 letters were timely and sufficient; no requirement of exhaustive particulars or client pre‑approval.
Retainer ended within weeks; the plaintiff thanked the solicitor and paid a modest fee—undercutting later negligence allegations.
No evidence of prejudice from any alleged omission (e.g., Garda report, vehicle assessment), especially as liability was always likely and later admitted.

Second Defendant: Anderson & Gallagher Solicitors

PIAB “Form A” location omission corrected; PIAB’s s. 17 authorisation was due to medical causation complexity, not form content.
Allegations of deceit were unsupported and contradicted by the record.
Advice about costs risks and caution around a loss‑of‑earnings claim was good‑faith, prudent advice—not negligence. The relationship breakdown over unwelcome advice does not create liability.
A late disclosure of a document on foot of a 2025 data access request was unfortunate but not shown to cause prejudice.

Third Defendant: Bernard L. Gaughran & Co. Solicitors

By the time instructed, PIAB was already engaged; any s. 8 letter timing issue had no pleaded consequences, and AXA was fully aware of the claim.
PIAB’s s. 17 decision concerned interacting causes of injury, not multiple causes of the accident; no negligence arises from not “explaining” this further.
Draft pleading misdescribing occupation was readily fixable and immaterial; no identified loss.
Firm dissolution notification could have been earlier, but caused no prejudice; client herself was non‑responsive to repeated limitation‑driven instruction requests.
Transfer/retention of the file around dissolution did not generate actionable harm; in any event the plaintiff soon confirmed instructions to the successor firm before promptly terminating again.

Conclusion

Zapryanova v Rochford Gibbons Solicitors & Ors crystallises a coherent approach to early disposal of solicitor‑negligence claims under the revised O. 19, r. 28. The Court reaffirmed that:

Professional negligence claims against solicitors generally require independent expert support before issue; launching without it is liable to be treated as an abuse.
Absent demonstrable prejudice, criticisms about routine PI processes (s. 8 letters, PIAB forms) will not ground liability—particularly when the underlying PI action remains on foot and liability is admitted.
Courts will not permit litigants to convert clerical imperfections into allegations of deceit or collusion, nor to rescue a failing case by parachuting in new, unpleaded causes of action at a strike‑out hearing.
The exceptional strike‑out jurisdiction can be harmonised with the constitutional and European rights of access to courts: where a case cannot succeed even at its high‑water mark, early termination promotes fairness, efficiency and proportionality.

The judgment, read alongside the Court of Appeal’s decision in Zapryanova v LSRA, also offers practical reassurance to practitioners: concise statutory notices, pragmatic PIAB engagement, and timely issuance to protect limitation in the face of client non‑engagement are good practice, not malpractice. For plaintiffs, the message is clear—before suing legal professionals, secure expert advice, identify concrete loss, and distinguish between administrative imperfections and actionable wrongs. The Court’s structured analysis sets a persuasive template for future O. 19, r. 28 applications in the professional negligence arena.