Date: Jan 31, 2026

Late Withdrawal of Opposition to Pleading Amendments: Opponent May Bear the Majority of Motion Costs, with Full Consequential Costs Preserved

1) Introduction

Hgreit II Montrose OPCO LLC and Anor v Cogent Project and Cost Management Ltd and Ors concerned costs arising from two interlocutory motions brought by the eighth and ninth defendants seeking leave to amend their respective defences. The motions did not require determination on their merits because the plaintiffs withdrew their opposition shortly before the listed hearing.

The underlying plenary proceedings are complex, multi-party construction defect claims relating to works at the Montrose Student Accommodation (2014–2016), alleged to have manifested as defects discovered during later works in 2020. The plaintiffs (US entities) sued numerous project participants for breach of contract, negligence, and breach of statutory duty. The eighth defendant was sued as architect; the ninth as fire safety engineers.

The core issue for the High Court (O’Donnell J.) was not whether amendments should be allowed, but: how costs should be allocated when opposition to amendment motions is withdrawn so late that a substantial hearing has effectively been prepared for, and how to treat consequential costs (pleadings, particulars, discovery) flowing from the amendments.

2) Summary of the Judgment

The Court held that, as a starting point, the party seeking amendments would ordinarily bear the costs of the motion and the costs “of and occasioned by” the amendments.
However, the plaintiffs’ opposition converted what could have been dealt with in directions into a more substantive scheduled hearing, and the plaintiffs’ withdrawal of opposition was made too late (after 6pm on 16 December for a hearing on 18 December) to yield meaningful cost savings.
The Court found the plaintiffs’ approach unreasonable in the Porterridge sense and treated the motion costs as a separate “event” in justice.
The Court ordered (for each motion) that the relevant defendant recover 70% of the costs of the motion to amend from the plaintiffs (with the 30% deduction reflecting unavoidable baseline costs of bringing an amendment motion).
The Court confirmed the plaintiffs’ entitlement to consequential costs occasioned by the amendments (e.g., amended reply; and where justified, particulars/discovery), without conditioning that entitlement based on speculative concerns that steps might be unnecessary.
The defendants also received their costs of the “costs hearing” (18 December 2025), and the Court imposed a stay on execution of the costs orders pending determination of the substantive proceedings.

3) Analysis

A) Precedents Cited

i) Porterridge Trading Ltd v. First Active PLC [2008] IEHC 42

This was the agreed doctrinal starting point. Clarke J. articulated the “traditional approach”: routine amendment motions generally result in costs against the amending party. But where opposition creates a separate and significant hearing with attendant additional costs, the court should consider a “wider range of factors” and may treat that interlocutory dispute as its own separate ‘event’ for costs purposes.

O’Donnell J. applied the Porterridge framework in a refined procedural setting: the amendment motions became “significant” not because the court decided merits, but because the plaintiffs’ conduct (opposition followed by late concession) forced the litigation machinery toward a half-day hearing. The key Porterridge inquiry became whether the opposition was reasonable and whether it caused avoidable significant costs.

ii) Care Prime FC Ltd & Ors v. Howth Estate Company & Ors [2020] IEHC 329

Allen J. confirmed that, once a motion becomes a substantive contested event, the court may apportion costs to reflect both (a) unavoidable baseline costs the moving party would incur anyway and (b) additional costs caused by unreasonable opposition. In Care Prime, the court awarded the moving party 70% of the motion costs.

O’Donnell J. drew on this as authority that proportional allocation is a legitimate, justice-based tool, not an all-or-nothing choice. The 70/30 division in the present case closely mirrors the calibrated approach endorsed in Care Prime.

iii) Stafford v. Rice [2021] IEHC 344

Simons J. dealt with the costs consequences of late-withdrawn objections to amendments, noting that withdrawal “too late to produce any meaningful saving” justifies treating the matter as having effectively proceeded as contested, at least in cost-incurrence terms. The case supported the idea that the cost differential between short applications and half-day hearings can be substantial, and that a pragmatic percentage award may approximate justice.

O’Donnell J. found an analogy: the plaintiffs’ concession came when the defendants were “one clear day” from the hearing, by which time most hearing-preparation costs were likely sunk. The judgment thus extends Stafford reasoning to a scenario where the contested hearing ultimately did not proceed, but its costs were substantially generated by the late change of position.

iv) Legislative context referenced

The judgment notes that, post-commencement of the Legal Services Regulation Act 2015, the Porterridge approach has been treated as consistent with section 169 (i.e., costs follow a structured, justice-based analysis and can treat discrete applications as discrete events where appropriate).

B) Legal Reasoning

i) The procedural rule-base: Order 28 RSC

O’Donnell J. located the dispute within Order 28 of the Rules of the Superior Courts (amendment of pleadings). Although the specific motions did not engage O.28, r.13 directly, the court treated r.13’s presumption—amending party bears “costs of and occasioned by”— as a powerful statement of default policy that informs what is “just” under applications requiring the court’s leave (O.28, r.1 and r.6: “such terms as may be just”, including as to costs).

ii) The “starting point” and the “modification”

The Court’s reasoning proceeds in two steps:

Starting point: presumptively the plaintiffs would get the costs of the amendment motions and the reasonable consequential costs. This reflects both Order 28 policy and the conventional costs approach to pleading amendments.
Modification: that presumption can be displaced where the non-moving party’s opposition is unreasonable and drives a significant, avoidable hearing. Here, the plaintiffs’ opposition required a scheduled half-day hearing, and the concession was made too late to avoid incurring most of the associated costs.

iii) Unreasonableness grounded in conduct and timing

The Court rejected the plaintiffs’ attempt to justify late concession by pointing to tight timelines and limited time for instructions. The judgment treats the tight timescale as materially self-created: the plaintiffs sought the early hearing date. Having chosen that strategy, they could not fairly shift the cost consequences of a late change of mind to the moving parties.

iv) Treatment of consequential costs

The Court drew a clear line between (a) costs of the amendment motions (re-allocated due to unreasonable opposition and late concession) and (b) costs “occasioned by” the amendments in the subsequent procedural sequence. It:

confirmed entitlement to costs of an amended reply as a direct and foreseeable consequence;
accepted that particulars/discovery may be consequential where they truly arise from the amendments (explicitly accepted by the ninth defendant; disputed in scope by the eighth);
refused to dilute the consequential-cost order based on speculative fear of over-proceduralisation, emphasising that any later dispute about the necessity/scope of particulars or discovery would be resolved by the court on its merits in any subsequent motion.

v) Apportionment at 70%

The 70% award to each moving defendant reflects a pragmatic judicial estimate: the defendants would have incurred some costs inevitably in bringing amendment motions (hence the 30% discount), but the dominant share of costs (hearing preparation for a contested motion) was attributed to the plaintiffs’ unreasonable opposition and late retreat.

C) Impact

Disincentive to tactical opposition followed by late concession: parties who oppose amendment motions and withdraw at the last moment risk being treated as having caused a costly “event”, even where the court ultimately does not decide the amendment merits.
Strategic case-management discipline: where a party presses for an accelerated timetable, it may be held to the costs consequences of that choice. The judgment signals that litigants cannot create urgency and then rely on that urgency to justify late reversals.
Normalization of apportionment: the decision reinforces percentage-based solutions as an accepted mechanism for achieving justice where baseline and incremental costs must be separated.
Protection of consequential-cost fairness: even when the opponent is penalised on motion costs, the court maintains the orthodox principle that reasonable steps forced by an amendment remain compensable as “occasioned by” the amendment.
Practical effect of a stay on execution: by staying execution pending trial, the court reduces immediate enforcement pressure and potential distortion of settlement/trial preparation, while still recording clear entitlements on costs.

4) Complex Concepts Simplified

“Costs of and occasioned by” an amendment: The costs of making the amendment (e.g., drafting and filing) and the knock-on costs the other side reasonably incurs because the pleading changed (e.g., updating a reply, seeking necessary particulars, targeted discovery).
Leave to amend: Court permission required to change pleadings at certain stages. The court can attach “just” terms, commonly about costs and case management.
A discrete “event” for costs purposes: An interlocutory dispute can be treated like its own mini-case for costs: if one party unreasonably causes a significant application/hearing, costs can “follow the event” even if, in general, another default rule would apply.
Apportionment of costs (e.g., 70/30): A court can award a percentage of costs to reflect that some costs were unavoidable while other costs were caused by unreasonable conduct.
Stay on execution: The costs order exists, but cannot be enforced (e.g., via execution measures) until a specified later point—here, until the substantive proceedings conclude.
“Adjudicated in default of agreement”: If the parties cannot agree the amount of costs, a formal costs adjudication process will determine the recoverable sum.

5) Conclusion

The High Court’s decision clarifies a practical and increasingly common costs problem in complex litigation: where opposition to an amendment motion triggers preparation for a substantive hearing and is then withdrawn too late to save costs, the opponent may be treated as having unreasonably caused a costly procedural “event” and can be ordered to pay the majority of the motion costs.

At the same time, the judgment preserves the orthodox compensatory principle that reasonable steps necessitated by the amendments themselves remain recoverable as consequential costs, with any later disputes about scope to be addressed case-by-case. The decision therefore tightens incentives for timely, proportionate procedural conduct while maintaining fairness in allocating costs that amendments genuinely generate.