Firm-Signed Appearances Are Valid Under Order 12 RSC; Limitation Defences Rarely Suited to Strike-Out in Solicitor Negligence

Introduction

This commentary analyzes the High Court of Ireland’s decision in Killeen v Higgins Trading as Regan McEntee & Partners Solicitors [No. 1] [2025] IEHC 582 (Simons J., 4 November 2025). The case arose from professional negligence proceedings brought by a former client (the plaintiff) against his former solicitors (the defendants) in connection with the conduct and progression of earlier High Court litigation issued in 2006 (the “principal proceedings”). The defendants sought to strike out the negligence action as frivolous or vexatious, disclosing no reasonable cause of action, and being bound to fail—principally on limitation grounds (section 11 of the Statute of Limitations 1957).

Procedurally, the court was also asked to address two technical objections raised by the plaintiff:

• whether a memorandum of appearance can validly be entered and signed in the name of a firm (as opposed to an individual solicitor), and
• whether a clerical error in the return date and an illegible signature on a notice of motion vitiate the defendants’ strike-out motion.

Substantively, the decision provides important guidance on:

• the recalibrated strike-out jurisdiction following the 2023 amendment to Order 19, rule 28 RSC,
• the limited role of strike-out in resolving statute-barred defences in professional negligence actions,
• the accrual of a cause of action in solicitor negligence premised on delay in managing litigation (i.e., when “real and meaningfully measurable loss” arises), and
• the permissibility (and limits) of proceeding without independent expert evidence where the alleged negligence concerns litigation management rather than technical expertise.

Summary of the Judgment

The High Court refused the defendants’ strike-out application. It held that, on the current record and at this interlocutory stage, the professional negligence claim is not “bound to fail” nor does it have “no reasonable chance of succeeding” merely because a limitation defence is raised. The court emphasized that limitation issues in solicitor negligence cases often involve factual and legal complexity, including potential postponement under section 71 of the Statute of Limitations 1957 (fraudulent concealment), rendering them unsuitable for summary disposal by strike-out.

The court also:

• Rejected the plaintiff’s two technical objections:
  • Order 12 RSC permits a firm of solicitors (not only an individual solicitor) to enter and endorse a memorandum of appearance.
  • A minor clerical error in the return year on a notice of motion, and an illegible handwritten signature where the firm is otherwise identified, do not invalidate the motion—particularly where no prejudice has occurred and the party has participated fully thereafter (waiver/acquiescence; Order 124 RSC).
• Refused the plaintiff’s motion for judgment in default of defence, noting it was reasonable to await determination of the defendants’ strike-out application.
• Directed the defendants to deliver a defence within 28 days.
• Indicated a provisional view that each party should bear its own costs on the motions, with liberty to file submissions on costs.

On the pleaded negligence, the court noted that one “specific allegation” (that the principal proceedings were struck out for non-attendance) rests on a false premise: it was a defendant’s motion in the principal proceedings, not the proceedings themselves, that was struck out. That aspect is “bound to fail.” Nonetheless, the court declined to strike out the entire action, as the central “delay” allegation must proceed to trial given the limitation arguments’ complexity.

Analysis

Precedents Cited and Their Influence

The judgment situates the post-2023 strike-out jurisdiction within established Supreme Court authority, and relies on several decisions to resolve the procedural objections and to shape the approach to limitation at strike-out stage.

• Keohane v Hynes [2014] IESC 66: The court quoted Keohane’s articulation of the high threshold for striking out proceedings as an abuse of process. Even where a case appears weak, summary dismissal is reserved for claims that are clearly “bound to fail.” This standard informs how the amended Order 19, rule 28 should be applied: it is not a vehicle for early merits determinations on contested fact or law.
• Lopes v Minister for Justice [2014] IESC 21: Cited by analogy to emphasize judicial caution: cases can take unexpected factual turns at trial. This underpins the principle that strike-out should be sparingly used, especially where factual development (discovery, subpoenas) could alter the evidential landscape.
• Jeffrey v Minister for Justice [2019] IESC 27; [2022] 2 IR 635: Reinforces that strike-out is not appropriate where complex issues of law arise that are not straightforward; further reason to remit limitation questions to trial rather than resolve them summarily.
• Smith v Cunningham [2023] IESC 13; [2024] 2 IR 314: The court referenced Smith to underscore that, in professional negligence, determining when a cause of action “accrues” can be complex. This supports the refusal to decide accrual-date disputes about negligent litigation management at strike-out stage.
• Mangan v Dockeray [2020] IESC 67: Clarifies there is no immutable rule requiring an expert report to commence professional negligence proceedings. A “reasonable basis” is needed, but in litigation-management claims (unlike clinical negligence), the court may not require expert evidence to define acceptable professional standards at the outset.
• Behan v McGinley [2008] IEHC 18; [2011] 1 IR 47: Distinguished. Behan did not address the core question here (when a “real and meaningfully measurable loss” is sustained in litigation-delay negligence), as the alleged loss there crystallized following a Supreme Court outcome.
• Donegal County Council v Quinn [2025] IESC 19: Although principally about “person” in the Courts (No. 3) Act 1986, the Supreme Court’s reasoning assists the High Court’s determination that firms may act and sign in the firm name. Murray J’s observation—that a firm could identify all partners but that would be no different in law—supports the permissibility of firm-signed court documents. The High Court applies this logic to Order 12 RSC.
• Pepper Finance Corporation (Ireland) DAC v Moloney [2022] IECA 287: Court of Appeal criteria for allowing a non-lawyer to address the court. Used to refuse the plaintiff’s request for a non-qualified person to speak as more than a McKenzie Friend, absent medical or other qualifying criteria.
• Killeen v Padraig Thornton Waste Disposal Ltd [2009] IEHC 131 (McKechnie J.): Provides factual context: the High Court had refused an application to dismiss the principal proceedings for delay in 2009; a separate estoppel motion was later struck out for non-attendance. This history undermined the plaintiff’s “specific” negligence allegation.

Legal Reasoning

1) The strike-out threshold post-2023 amendment to Order 19, rule 28

The 2023 reforms (SI No. 456/2023) materially align the rule-based strike-out jurisdiction with the inherent jurisdiction. The new text (“bound to fail” and “no reasonable chance of succeeding”) codifies—not liberalizes—the pre-existing jurisprudence (Keohane v Hynes). Courts may look beyond pleadings to limited affidavit evidence (Order 19, rule 28(3)), but strike-out remains an exceptional remedy.

Importantly, Simons J. confirms that while the court can assess whether there is a “credible basis” for the pleaded case, it must remain alert to the incompleteness of pre-trial evidential tools (discovery, interrogatories, subpoenas). Unless it is clear the action is unsustainable, the matter should proceed to trial.

2) Limitation defences and strike-out in solicitor negligence

The court stresses that it is “very unusual” to resolve a statute-barred defence via strike-out. More typical is determination at a unitary trial, or by preliminary issue on agreed facts or taking the plaintiff’s case at its height. To succeed on strike-out, a defendant must demonstrate that the plaintiff has no reasonable prospect of answering the limitation defence.

Two features make solicitor negligence limitation defences impractical for strike-out in many cases:

• Asymmetry of knowledge: advisers often know more about the relevant facts; if there is an arguable case of “fraudulent concealment” (section 71 of the 1957 Act), postponement may arise, which typically requires factual exploration at trial.
• Accrual complexity: identifying when “real and meaningfully measurable loss” occurs can be nuanced, especially for litigation-delay negligence (see below).

3) Accrual of the cause of action for litigation-delay negligence

The plaintiff argued accrual occurred when the principal proceedings were actually dismissed (24 June 2025); the defendants argued it was when their retainer ended (2015/2016). The court found neither position obviously correct and identified the principled inquiry: when did the plaintiff sustain a “real and meaningfully measurable loss”?

On first principles, the loss alleged is the lost opportunity to pursue the principal proceedings. The court reasoned that loss arguably arises when the underlying delay had become such that an application to dismiss would be unanswerable—not only when a third party (the defendant in the principal proceedings) chooses to bring, and the court grants, such an application. Tying accrual to the date of an external application (or to the date of retainer termination) risks making accrual contingent on third-party actions or formal procedural milestones, rather than on when the plaintiff’s position became irremediably prejudiced.

The court declined to fix the accrual date on a strike-out application, particularly absent submissions on the status of the principal proceedings six years before issuance of the negligence claim. That question is for trial. Crucially, termination of the retainer may mark the last date for breach of duty by those solicitors, but it does not necessarily mark the date on which loss crystallized. Nor is actual dismissal of the principal proceedings a necessary precondition if, before then, the case had become indefensible on delay grounds.

4) Section 71 and fraudulent concealment

The plaintiff also invoked section 71(1)(b) (fraudulent concealment). Determining whether a right of action was “concealed by the fraud of the defendant” is a mixed question of fact and law. Save in clear-cut cases, this postponement contention should not be summarily dismissed. Given the court’s conclusion that accrual itself was not suitable for summary determination, it was unnecessary at this stage to decide the section 71 point; it remains for trial.

5) No immutable requirement for an expert report at this stage

Applying Mangan v Dockeray, the court held that litigation-management negligence claims do not invariably require expert reports to survive to trial. The alleged failure is straightforward—progressing litigation with reasonable expedition—and the court can assess professional standards in that context without early expert opinion (as distinct from clinical negligence).

6) Technical objections rejected: firm-signed appearance and minor motion defects

On the memorandum of appearance:

• Order 12, read with Order 125 (“singular includes plural”), permits a firm to be named as “the defendant’s solicitor(s)”. The functional purposes of an appearance—acceptance of service, identification of legal representation, and nomination of a service address/email—are better served by firm identification, especially given DX and domain naming practices, and to avoid unnecessary amendments when team members change. This is reinforced by the firm’s LLP status.
• Donegal County Council v Quinn supports the lawfulness of firm action: identifying all partners would be more specific in fact but “no different in law.”
• Even if an individual solicitor’s name were strictly required (it is not), the appearance would be, at most, irregular (voidable, not void) and subject to the court’s discretion under Order 124. Here, the plaintiff acted on the footing that an appearance had been entered, and proceeded to deliver a statement of claim and engage with the motion practice; any objection is waived and, in any event, no prejudice was shown.

On the notice of motion:

• A clerical error in the year of the return date (typed as 2024 instead of 2025) did not discommode the plaintiff, who attended on the correct date and continued to participate. The defect is cured by participation and causes no prejudice.
• An illegible handwritten signature does not invalidate the motion where the firm is clearly identified in type.

The court also noted that, if anything, the plaintiff’s own titling was irregular under Order 14 RSC (description of a partnership defendant), underscoring that strict formalism should not derail substantive justice absent prejudice.

7) McKenzie Friends and “spurious” technical arguments

Relying on Pepper Finance v Moloney, the court refused to allow a non-lawyer to address the court on the plaintiff’s behalf. It cautioned litigants in person against “charlatans” promoting spurious technical arguments (such as the appearance point advanced here) that distract from the merits and hinder effective case presentation.

Impact and Implications

1) Procedural clarity: firm-signed appearances under Order 12 RSC

This decision squarely confirms that a firm’s registered name may be endorsed on a memorandum of appearance. The holding reduces scope for wasteful satellite objections, aligns practice with modern communications (DX codes and firm domains), and dovetails with LLP structures under the Legal Services Regulatory Authority regime. It will be a ready citation for practitioners and the Central Office.

2) Strike-out discipline post-Order 19 reform

The judgment is an authoritative reminder that the 2023 amendments codify, rather than dilute, the stringent “bound to fail” standard. Defendants should be slow to deploy strike-out to resolve limitation disputes in professional negligence claims; preliminary issues or trial remain the appropriate fora except in the clearest of cases.

3) Accrual in solicitor negligence based on delay

While not deciding the point, the court’s reasoning provides a cogent analytical frame likely to influence future pleadings and argument:

• Accrual turns on when a “real and meaningfully measurable loss” was suffered, potentially when the underlying proceedings became indefensible on delay grounds.
• Termination of a retainer is not, by itself, determinative of accrual.
• Actual dismissal of the underlying action need not be the trigger if the position had already become irretrievably lost.

Expect more granular factual inquiries at trial into the status of the underlying proceedings at defined points in time (e.g., whether, X years prior to issuance of the negligence claim, a dismissal application would have been unanswerable). Parties may need to adduce evidence about steps taken, availability of evidence, and the conduct of all actors including successor lawyers.

4) Evidential practice: expert reports

The court’s reliance on Mangan v Dockeray confirms that early expert reports are not a prerequisite for all professional negligence claims. In litigation-management cases—where standards are within the court’s experience—claims can proceed without immediate expert input. This will help prevent premature strike-out attempts based solely on the absence of expert reports.

5) Managing lay participation and curbing procedural gamesmanship

The warning about unqualified advisors and the application of Pepper Finance v Moloney will likely be quoted in future to maintain proper standards of representation and to deter reliance on technical points that cause no prejudice. The emphasis on Order 124 (irregularities, waiver, acquiescence) aligns with a purposive, prejudice-focused approach to procedural defects.

Complex Concepts Simplified

• Strike-out vs preliminary issue vs trial: Strike-out summarily terminates a claim only if it is clearly unsustainable (“bound to fail”/“no reasonable chance”). A preliminary issue isolates a discrete legal/factual question for early determination on agreed facts or taking the plaintiff’s case at its height. A full trial is the ordinary forum for contested facts and complex law.
• Statute-barred: A claim is statute-barred if not brought within the statutory time limit (here, typically six years from accrual under section 11 of the 1957 Act).
• Accrual of cause of action: The clock starts when the plaintiff sustains a real, measurable loss caused by the breach (not merely when the breach occurred or when someone later takes a procedural step). In litigation-delay negligence, accrual may occur when the underlying case became indefensible to a delay-dismissal application.
• Fraudulent concealment (section 71): If a defendant fraudulently conceals the right of action, time may not begin to run until discovery (or discoverability with reasonable diligence). This is fact-sensitive and rarely suitable for summary determination.
• Memorandum of appearance: A formal acknowledgment of representation and address for service. Under Order 12 (read with Order 125), a firm of solicitors may file it in the firm’s name; defects are irregularities subject to the court’s discretion and prejudice analysis (Order 124).
• McKenzie Friend: A non-lawyer who may quietly assist a litigant in person but may not address the court except in exceptional circumstances assessed under Pepper Finance v Moloney.

Conclusion

Killeen v Higgins is significant on two fronts. First, it conclusively clarifies that a firm of solicitors may validly enter and sign a memorandum of appearance in the firm name under Order 12 RSC, an interpretation reinforced by Order 125 and by Supreme Court authority in Donegal County Council v Quinn. This settles a recurring technical skirmish and promotes a practical, purpose-driven approach to court documents.

Second, it reinforces that the amended strike-out jurisdiction remains a sparingly exercised tool. Limitation defences in solicitor negligence actions—especially those alleging negligent litigation management—are ordinarily unsuitable for summary determination. Accrual turns on when measurable loss is suffered, not automatically on retainer termination or formal dismissal of the underlying case; section 71 postponement arguments may also require factual inquiry. The upshot is that such claims will frequently require trial (or, where appropriate, a preliminary issue) rather than strike-out.

The judgment also offers practical guidance: expert reports are not invariably necessary at the outset for litigation-management negligence; procedural irregularities without prejudice are curable and subject to waiver; and courts will guard against the distraction of spurious technical arguments and improper attempts by unqualified persons to advocate.

Overall, the decision prioritizes substance over form, preserves access to trial where factual development is material, and provides clear, practice-oriented rulings that will improve procedural certainty in professional negligence litigation and beyond.

Key Takeaways

• Order 12 RSC permits a firm of solicitors to enter and endorse a memorandum of appearance in the firm’s name; any contrary view misreads the Rules and their purpose.
• Order 19 (as amended in 2023) codifies, but does not relax, the stringent strike-out threshold: “bound to fail”/“no reasonable chance.”
• Limitation defences in solicitor negligence actions—especially those grounded in delay—are rarely apt for strike-out; accrual may hinge on when the case became indefensible on delay, not on retainer termination or eventual dismissal.
• Section 71 (fraudulent concealment) arguments are fact-sensitive and generally unsuitable for summary disposal.
• No absolute requirement for expert reports at the outset in litigation-management negligence; Mangan v Dockeray applies.
• Minor procedural defects (e.g., a clerical error in a return date, an illegible signature where the firm is identified) do not invalidate motions absent prejudice; waiver and acquiescence matter (Order 124).
• Courts will enforce limits on McKenzie Friends and caution litigants against spurious technicalities that distract from the merits.