No amendment prejudice where statute bar was inevitable: High Court permits late PIAB authorisation and limitation defences

Case: O’ Flaherty v Comyns & Ors [2025] IEHC 590 (High Court, Stack J., 31 October 2025)

Introduction

This judgment addresses a procedural but practically decisive question in Irish personal injuries and public law litigation: when, and subject to what limits, may a defendant late in the day amend a defence to introduce (i) a Personal Injuries Assessment Board (PIAB) authorisation objection, (ii) statutory limitation defences (including the one-year limit for damages under section 3 of the European Convention on Human Rights Act 2003), and (iii) an objection that a constitutional damages claim is duplicative of parallel tort claims?

The plaintiff alleges serious policing failures and impropriety by members of An Garda Síochána in relation to the investigation of alleged sexual offences against her when she was a young teenager. Although neither of the first two named defendants (a serving and a retired garda) was the investigating officer, it is alleged they acted improperly in connection with that investigation. The third to sixth named State defendants (the Commissioner of An Garda Síochána, the Minister for Justice, Ireland and the Attorney General) sought to amend their defence, delivered in June 2023, by motion issued in March 2025 and heard in October 2025, to add three preliminary objections.

As a backdrop, the court noted that the Statement of Claim is “deeply unsatisfactory” in its pleading: it contains a rolled-up allegation against all defendants for multiple torts and breaches (including misfeasance in public office, breach of constitutional and ECHR rights, and even alleged criminality), without distinguishing acts by each defendant or giving particulars of fraud as required by Order 19 rule 5 RSC. This lack of clarity both complicated the amendment application and framed the court’s assessment of fairness to the State defendants in raising late pleas.

Summary of the Judgment

Ms Justice Siobhán Stack allowed the State defendants to amend their defence to introduce all three preliminary objections:

• Limitation defences: The court permitted the State defendants to plead that certain claims are statute-barred under the Statute of Limitations and that any claim under section 3 ECHR Act 2003 is out of time (subject to possible extension). Prejudice for amendment purposes must arise from lateness, not the substance of the defence. Because limitation periods are fixed by the date of institution of proceedings and accrual of causes of action, allowing the late plea does not, by itself, cause the relevant prejudice (paras 19–25, 23).
• PIAB authorisation (“authorisation issue”): The court also permitted the State defendants to plead that the plaintiff was precluded from maintaining her personal injury claim for lack of PIAB authorisation under section 12 of the 2003 Act. Although Duggan v MacDonald was cited to resist a late introduction, the court distinguished it: here, even had the plea been included in the original defence, the plaintiff’s two-year personal injuries limitation window appears to have already expired by then (on the pleaded “date of knowledge”), so any prejudice stemmed from the plaintiff’s failure to seek authorisation pre-issue, not from the lateness of the plea (paras 26–38).
• Constitutional damages duplicating tort claims: The court allowed an amendment to plead that any stand-alone constitutional damages claim should be struck out as duplicative of common law tort claims. The merits are for another day, but no serious procedural objection existed to adding the plea (para 17; concluding at para 39).

In result, all three amendments were allowed (para 39). The court emphasised that the merits of each preliminary objection remain to be determined at trial or on a preliminary issue if appropriate (para 35).

Precedents Cited and Their Influence

Clarke v O’Gorman [2014] IESC 72; [2014] 3 I.R. 340

Clarke authoritatively settled that a “civil action” within the PIAB regime encompasses claims for personal injuries beyond negligence, such that authorisation may be required even where the pleaded causes of action sound in intentional torts or other wrongs. Relying on Clarke, the court proceeded on the basis that the plaintiff’s claims—given they predominantly seek damages for personal injuries—fall within PIAB, triggering the section 12 authorisation requirement unless some exception applies (paras 26–27).

Cornhill v Minister for Agriculture [1998] IEHC 47

O’Sullivan J.’s statement that amendments should be approached liberally to resolve the real controversy, provided they would have been allowable ab initio and cause no injustice, guided the court’s general approach (para 21). The High Court accepted that if the amended plea would have been proper in an original defence and does not inflict injustice in the legal sense, it should be allowed.

Stafford v Rice [2022] IECA 47 approving Woori Bank v KDB Ireland Ltd [2006] IEHC 156

The Court of Appeal’s key principle, echoing Clarke J. in Woori Bank, is that any “prejudice” relevant to a late amendment must flow from the belated introduction of the plea, not its substance (para 22). Stack J. applied this directly: limitation periods are fixed by the intrinsic timeline of accrual and issue; therefore, merely allowing a late plea of limitation or PIAB authorisation does not itself create the operative prejudice (paras 23–25, 32–34). This was decisive in distinguishing cases where lateness would newly expose a plaintiff to a statute-bar that would not otherwise have arisen.

Duggan v MacDonald [2016] IEHC 413

Duggan was the principal authority deployed to resist the late PIAB authorisation plea. There, a late amendment was refused because allowing it would have prejudiced the plaintiff in limitation terms; discontinuance and reissue after PIAB would have rendered the case statute-barred. Here, by contrast, Stack J. held that on the pleaded “date of knowledge” (July 2020), the two-year personal injuries limitation would have expired by approximately July 2022—before the original defence (June 2023). Thus, even if the PIAB point had been pleaded on time, the plaintiff would have faced the same practical limitation difficulty. Any prejudice arose from the plaintiff’s failure to secure PIAB authorisation pre-issue, not the timing of the defence amendment (paras 27–38). Accordingly, Duggan was distinguished, not departed from (para 37).

Legal Reasoning

1) Limitation defences (Statute of Limitations and ECHR Act 2003)

• The court underscored that limitation periods are assessed by reference to the date proceedings were issued and when each cause of action accrued (para 23). Because these timelines are fixed, adding a limitation plea late does not, per se, cause the operative prejudice under Stafford (paras 22–25).
• Compounding this, the Statement of Claim does not clearly identify which causes of action are asserted against which State defendant or specify dates of the impugned acts (paras 5–9, 19–20, 24). This uncertainty made it harder for the State to pinpoint limitation issues earlier, which the court regarded as relevant to fairness in permitting amendment (para 24).
• On the ECHR Act 2003, the court recorded the one-year limitation period for damages claims under section 3, subject to a court’s ability to extend in the interests of justice (para 20). No merits decision was made; the court merely allowed the State to raise the limitation defence (para 23).

2) PIAB authorisation objection

• Applying Clarke v O’Gorman, the court proceeded on the basis that claims seeking damages for personal injuries—even if framed as intentional torts, misfeasance, or constitutional/ECHR breaches—are “civil actions” requiring PIAB authorisation under section 12 of the 2003 Act (paras 26–27).
• The central “prejudice” analysis was temporal: the plaintiff pleaded a “date of knowledge” around July 2020 (para 30). On that premise, any two-year personal injuries claim was statute-barred by approximately July 2022 (para 30). The original defence was delivered in June 2023 (para 32). Thus, even if the PIAB objection had been pleaded at the outset, the plaintiff would have faced the same limitation predicament. The prejudice arises from the underlying limitation landscape and the absence of pre-issue authorisation, not from the amendment’s lateness (paras 32–34).
• The court acknowledged the statutory stop-clock under section 50 of the 2003 Act (excluding PIAB processing time plus six months), but emphasised that the time consumed by the first set of proceedings prior to the late plea is “reckonable” and cannot be retrospectively erased; in this case, that period exceeded four years (paras 29–31). Even so, on these facts, the plaintiff’s limitation problem pre-dated the original defence (para 32).
• Duggan was distinguished: there the late objection would have created a new statute-bar problem; here the problem existed already. Therefore, allowing the amendment did not inflict amendment-based prejudice (paras 37–38).
• The court stressed it was not deciding whether authorisation is in fact required for every aspect of the plaintiff’s case—only that the State may raise the point (para 35).

3) Duplicative constitutional damages

• The court allowed an amendment pleading that constitutional damages are unsustainable where they merely replicate tort claims (paras 16–17, 39). Irish law recognises that constitutional damages are exceptional; where adequate common law remedies exist, courts are wary of parallel constitutional tort recovery. The merits of that argument remain to be determined later (para 35).

Impact and Significance

This decision refines the operation of the “no-prejudice-from-lateness” principle to the specific context of PIAB authorisation and limitation defences:

• Clarified prejudice test in amendment motions: When defendants seek late to plead PIAB authorisation and/or limitation defences, courts will ask whether the plaintiff would have been materially better off had the objection been raised on time. If, as here, the limitation difficulty was already baked into the timeline, the amendment does not cause relevant prejudice and will ordinarily be allowed.
• Practical warning for plaintiffs in public law/tort hybrids: Litigants pursuing misfeasance, intentional torts, or rights-based claims that seek damages for personal injuries are, by default, within PIAB (per Clarke). Failure to secure authorisation pre-issue can be fatal. One cannot avoid PIAB by relabelling the cause of action.
• Sharper focus on pleadings discipline: Rolled-up, undifferentiated pleadings that do not specify which acts are attributed to which defendant and when, will not insulate plaintiffs from procedural defences. Indeed, such pleading deficiencies can justify or at least contextualise late defensive amendments.
• ECHR Act claims under time pressure: Section 3 claims carry a one-year limitation (extendable in the interests of justice). Plaintiffs must plead them distinctly, date them precisely, and consider seeking extensions proactively where warranted.
• Constitutional damages not as a back-up: Defendants may be permitted to argue that constitutional tort claims are duplicative and should be struck out where common law torts provide an adequate remedial pathway. Plaintiffs should articulate a principled basis for any stand-alone constitutional damages, or risk strike-out at an early stage.

Complex Concepts Simplified

• PIAB authorisation (section 12, 2003 Act): Before suing for damages for “personal injuries,” a claimant usually must first apply to the Personal Injuries Assessment Board (PIAB) and obtain an “authorisation.” Issuing proceedings without it exposes the case to strike-out.
• “Civil action” under PIAB: The Supreme Court in Clarke v O’Gorman confirmed that PIAB applies based on the type of loss claimed (personal injuries), not the legal label (negligence vs intentional tort or other wrong). If you seek personal injury damages, PIAB likely applies.
• Limitation periods: Statutes set deadlines to sue (e.g., two years for most personal injury claims from accrual or “date of knowledge”). If you miss the deadline, the claim is “statute-barred.”
• Date of knowledge (1991 Act): For personal injuries, time can run from when the plaintiff first knew (or ought to have known) key facts about the injury and its attribution.
• ECHR Act 2003, section 3: You can seek damages for a public authority’s failure to act compatibly with Convention rights only if no other remedy is adequate; the limitation is one year (the court may extend in the interests of justice).
• Section 50, 2003 Act (PIAB): Time spent in the PIAB process is excluded from the limitation clock, with an extra six months. It does not erase time that passed before applying to PIAB.
• Preliminary objection: A procedural point raised early (or via amendment) to say the claim should not proceed (e.g., limitation, lack of PIAB authorisation).
• Amendment prejudice (Stafford/Woori principle): The relevant “prejudice” is that caused by the delay in raising the plea, not the plea itself. If the same outcome would have followed had the plea been made on time, the amendment usually causes no relevant prejudice.
• Rolled-up plea/particulars: Pleading multiple causes of action together against all defendants without distinguishing who did what and when. This can breach pleading rules and make cases harder to manage.
• Misfeasance in public office: A tort involving bad faith or knowing abuse of public power that causes harm; it must be precisely pleaded and proved.

Pleading Standards and Case Management Observations

The court’s strong critique of the Statement of Claim is a practical message for practitioners:

• Specify the cause of action against each defendant, the material facts, and the dates relied on.
• Do not roll up multiple torts and breaches against all defendants without particulars. If alleging fraud, provide particulars as required by Order 19 rule 5.
• Distinguish between harms caused by the underlying wrongs (e.g., sexual assaults) and harms allegedly caused by the defendants’ misconduct in investigating or handling those wrongs.
• Anticipate PIAB and limitation issues early; where in doubt, consider a protective PIAB application pre-issue.

Practical Guidance for Future Litigation

• For plaintiffs:
  • Audit your causes of action at the outset. If you will claim damages for personal injuries (including psychological injury), assume PIAB applies unless clearly exempt.
  • Identify and record the “date of knowledge” and check the two-year personal injury limitation. Do not rely on the defendant to raise the issue—manage it proactively.
  • For ECHR Act claims, calendar the one-year limit and consider an extension motion if appropriate.
  • If pleading constitutional damages, articulate why common law remedies are inadequate and how the constitutional wrong is distinct; consider non-monetary relief where appropriate.
  • Avoid rolled-up pleas. Provide particulars per defendant and per cause of action; give fraud particulars if alleged.
• For defendants:
  • Raise PIAB and limitation defences as early as possible. However, this decision confirms that courts may permit late amendments where no additional prejudice arises from the delay.
  • Where pleadings are unclear, seek further particulars and reserve rights to amend once causes of action and dates crystallise.
  • Consider applying to have duplicative constitutional claims struck out or confined.

Conclusion

O’Flaherty v Comyns & Ors confirms and refines a key procedural principle: on amendment applications, relevant prejudice must stem from the delay in pleading, not from the defence as such. Where (as here) the plaintiff’s limitation difficulties would have existed even if PIAB authorisation and limitation pleas had been raised promptly, a late amendment to add those pleas will ordinarily be allowed. The judgment also reiterates that PIAB’s authorisation net catches claims for personal injuries regardless of whether they are framed in negligence, misfeasance, or rights-violations; and it signposts judicial unease with duplicative constitutional damages where common law remedies suffice.

Beyond procedure, the case is a cautionary tale on pleadings and timing: plaintiffs should identify causes of action and timelines precisely, seek PIAB authorisation where necessary before issuing, and avoid rolled-up allegations. Defendants, for their part, should act promptly but can take some comfort that late procedural defences may still be introduced if no amendment-based prejudice is shown. The decision will influence strategy in public authority and policing cases alleging psychological injury, ECHR breaches, and parallel constitutional claims, placing renewed emphasis on early PIAB compliance and on disciplined, defendant-specific pleading.

This commentary is for information only and not legal advice.