Order 19 r.28 (2023) Strike-Out: Codified “Bound to Fail” Test and Plain Limitation Defences

1) Introduction

Hickey v Howley and Ors [2026] IEHC 113 is a High Court ruling (Jackson J., 9 February 2026) on a motion by the First Named Defendant (Joseph Howley) to strike out/dismiss proceedings brought by Val Hickey. The broader proceedings also named the Minister for Justice, Ireland and the Attorney General, but those claims had already been struck out by order of Twomey J. on 7 April 2025.

The plaintiff’s core narrative was that he was wrongly re-registered for VAT and income tax (circa 2011), leading to allegedly incorrect assessments, warrants, enforcement pressure, and consequential loss (including alleged health impacts and complaints about Revenue officials). The First Named Defendant contended that the claims disclosed no reasonable cause of action, were abusive/bound to fail, and were clearly statute-barred (tort and personal injuries).

The decision is most significant for its practical application of the amended Order 19 rule 28 (RSC) strike-out jurisdiction (as framed post-2023), including how the Court treats limitation defences on a strike-out motion where there is no realistic answer available to the plaintiff.

2) Summary of the Judgment

  • The Court held that, on the largely undisputed facts, the proceedings disclosed no reasonable cause of action, had no reasonable chance of success, and were bound to fail.
  • The Court also found the claims (tort and personal injuries) to be plainly statute-barred given the relevant events had crystallised by no later than March 2014, whereas proceedings issued on 28 September 2023.
  • The Court granted the strike-out relief sought against the First Named Defendant.
  • On costs, the First Named Defendant was presumptively entitled to costs; the Court permitted short written submissions on any departure from that position.

3) Analysis

3.1 Precedents Cited

Strike-out/abuse of process: the cautious but real jurisdiction

  • Tracey v. Burton [2016] IESC 16: cited for the principle that strike-out for abuse of process is to be exercised sparingly, but it remains an important supervisory power where proceedings misuse the court’s process.
  • Fay v Tegral Pipes Ltd [2005] IESC 34: central to the Court’s methodology. Jackson J. relied on McCracken J.’s clarification that where underlying facts are largely uncontroversial, the court may test whether the plaintiff’s inferences and legal conclusions can possibly yield a cause of action—without resolving genuine factual disputes.
  • Irish Bank Resolution Corporation Ltd v. Purcell (Cregan J.) [2014] IEHC 525: invoked for the “stateable case” framing—i.e., whether the plaintiff can articulate a legally sustainable claim.
  • Farley v. Ireland Supreme Court (Barron J.) 1 May 1997: relied upon for the “reasonable chance of success” test; and for the idea that it is vexatious (and a hardship) to require a defendant to defend what cannot succeed.
  • Moylist Construction Ltd v. Doheny [2016] IESC 9: Clarke J.’s cautionary threshold was adopted—strike-out should occur only when it is clear there is “no real risk of injustice”.

The post-2023 framework: Order 19 rule 28 as codification

  • Killeen v Higgins [2025] IEHC 582: treated as the key modern guide to the amended rule. Jackson J. adopted Simons J.’s explanation that the 2023 amendment erodes the older practical distinction between Order 19 and inherent jurisdiction, while preserving the underlying restraint: the court cannot use strike-out to decide contested issues “on a summary basis”. The Court also drew from Killeen the nuanced approach to limitation defences on strike-out (a higher bar than a preliminary issue).
  • Keohane v. Hynes [2014] IESC 66: used to structure the evidential threshold. The plaintiff need only show a “credible basis” that evidence might exist at trial to prove necessary facts; the court may strike out where assertions are mere allegation with no evidence and no reasonable basis to believe evidence could emerge.
  • Burke [v. Anglo Irish Bank Corporation plc & Anor [2011] IEHC 478]: endorsed in Keohane and deployed here indirectly to underline that credible, potentially trial-proof evidence defeats a “bound to fail” application.
  • Lopes v. Minister for Justice, Equality and Law Reform [2014] IESC 21, [2014] 2 IR 301: referenced (via Killeen/Keohane) for the warning that trials can “take unusual turns”; hence strike-out should not be granted merely because a case seems weak.
  • Jeffrey v. Minister for Justice, Equality and Defence [2019] IESC 27, [2022] 2 IR 635: cited (via Killeen) for the proposition that strike-out is unsuitable where the issues of law are not straightforward.
  • Meehan v. Ireland [2025] IECA 59: relied upon for the proposition that after the substituted rule, abuse-of-process strike-out is “to be found” in the rule itself, and that the categories (“no reasonable cause of action”, “bound to fail”, “no reasonable chance”) substantially overlap in practice.

Limitation as a strike-out ground (rare, but sometimes justified)

  • Mulrooney v. Shee [2019] IEHC 822 and LOC8 Code Limited v. Department of Environment, Climate Support and Communications and Ors. [2024] IECA 235: cited to confirm that, although unusual, a strike-out on limitation grounds can be appropriate where the plaintiff has no realistic answer.

Tax assessments and the exclusivity of statutory appeal routes

  • Deighan v. Hearne [1990] 1 IR 499: cited for the principle (Finlay C.J.) that the court cannot try issues of fact arising from an assessment made in default of a return other than through the statutory appeal procedure in the income tax code. While Jackson J.’s ultimate disposal was grounded on “no cause of action” and limitation, the citation reinforces an underlying structural point: civil damages proceedings are not a substitute for tax appeal mechanisms.

PIAB and mixed claims

  • Clarke v O'Gorman [2014] IESC 721: relied upon to reject the argument that non-compliance with section 12 of the Personal Injuries Assessment Board Act 2003 was necessarily fatal in this context, particularly having regard to section 4 of the 2003 Act definition of “civil action”. (The case was not ultimately decided on this procedural ground.)

3.2 Legal Reasoning

(A) The court’s task under the amended strike-out jurisdiction

Jackson J. treated the strike-out jurisdiction as one requiring caution, but capable of disposing of proceedings where the plaintiff’s case is not merely weak but incapable. She expressly relied on the modern articulation (especially in Killeen v Higgins [2025] IEHC 582 and Keohane v. Hynes [2014] IESC 66) that the Court may:

  • assume the plaintiff’s pleaded/deposed facts at their height where factual conflict exists;
  • consider affidavit evidence to the limited extent permitted (also flagged by the reference to Order 19 rule 23(3));
  • test whether pleaded facts and the plaintiff’s inferences can, as a matter of law, generate any viable cause of action;
  • strike out where assertions are unsupported by any evidence and there is no reasonable basis to think supporting evidence could emerge at trial.

(B) Application to the pleaded Revenue/VAT narrative: no cause of action

The Court identified that the essential facts were largely not in dispute:

  • the plaintiff continued to trade during the years at issue;
  • he had not filed returns for the relevant period;
  • Revenue raised assessments; a warrant issued to the Dublin City Sheriff and a demand letter issued (May 2013);
  • enforcement did not proceed to execution; once returns were filed, VAT assessments were withdrawn, confirmed by letter of 26 February 2014 and by the plaintiff’s solicitor (13 March 2014).

On that matrix, Jackson J. concluded that the proceedings did not disclose a reasonable cause of action. The decision emphasises a practical legal causation point: the plaintiff’s claimed harms were not plausibly attributable (in a legally actionable sense) to wrongful conduct by the defendant, where the triggering events flowed from the plaintiff’s own non-filing during trading and the lawful operation of Revenue enforcement steps, followed by withdrawal once returns clarified the VAT position.

Importantly, the Court treated the allegations against various Revenue officials as “vague, general and imprecise” and found no reasonable basis to believe evidence would become available to substantiate wrongdoing sufficient to found liability.

(C) Criminal conviction complaints: wrong procedural vehicle and delay

The plaintiff also complained of “wrongful conviction and fines in the courts by DPP”. The Court noted the prosecution was brought by the DPP and determined by the District Court; any challenge lay by appeal and/or judicial review—both long out of time. This reinforced the “no cause of action” conclusion against the First Named Defendant in respect of that aspect and underscored the mismatch between the remedy sought (civil damages) and the proper procedural route.

(D) Limitation: when strike-out is justified

While acknowledging (following Killeen v Higgins [2025] IEHC 582) that limitation issues are “generally” for trial or preliminary issue, Jackson J. held this was one of the rare cases where a strike-out was appropriate because the timeline was clear:

  • all material events had crystallised by no later than March 2014 (withdrawal of VAT assessments and resolution of that aspect);
  • proceedings issued on 28 September 2023;
  • there was no pleaded or evidenced basis capable of displacing the limitation bar.

Accordingly:

  • non-personal-injury tort claims were outside the six-year period under section 11 of the Statute of Limitations Act, 1957 (as amended);
  • personal injury claims were outside the two-year period under section 3(1) of the Statute of Limitations (Amendment) Act, 1991 (as amended).

The judgment also treated the “personal injuries” component as lacking particulars and, critically, as relating to the same historical events long since complete by 2014.

(E) Procedural arguments the Court did not determine

The First Named Defendant raised additional procedural bars (including section 12 PIAB and section 10 of the Civil Liability and Courts Act 2004). Jackson J. did not decide the motion on these grounds. Notably:

  • she was not persuaded that section 12 PIAB non-compliance was necessarily fatal in the circumstances (citing Clarke v O'Gorman [2014] IESC 721 and section 4 of the 2003 Act);
  • as to the Civil Liability and Courts Act 2004 requirements, she noted the statute contains its own consequence mechanisms and she had not been addressed on the alternatives.

3.3 Impact

  • Operational clarity on the amended Order 19 r.28: The judgment reinforces that post-2023 Order 19 rule 28 is not a mere pleading-only filter; it permits limited engagement with affidavit material to test whether a claim is genuinely capable of success, consistently with the codified “bound to fail/no reasonable chance” language.
  • Limitation defences can succeed on strike-out in the clearest cases: The ruling illustrates the narrow category where limitation is so clear on uncontested chronology that it supports strike-out, aligning with Killeen v Higgins [2025] IEHC 582 and the cited examples (Mulrooney v. Shee [2019] IEHC 822; LOC8 Code Limited v. Department of Environment, Climate Support and Communications and Ors. [2024] IECA 235).
  • Tax disputes and collateral civil claims: By referencing Deighan v. Hearne [1990] 1 IR 499, the judgment signals continued judicial resistance to using plenary damages actions as a substitute for statutory tax appeal processes, particularly where the true dispute concerns assessments raised due to non-filing.
  • Pleading discipline against public bodies: The Court’s emphasis on vagueness and lack of evidential foundation is likely to be cited by defendants (especially public authorities) to seek early disposal where serious allegations are made without particulars, coherent causation, or an evidential roadmap.

4) Complex Concepts Simplified

  • “Strike out” (Order 19 rule 28): An early court order ending all or part of a claim because, even taking the plaintiff’s case at its best, it is legally unsustainable, abusive, bound to fail, or has no reasonable chance of success.
  • “Abuse of process”: Using the court process for something it is not meant for—commonly, pursuing claims that cannot succeed or are brought in a way that is unfairly oppressive to a defendant.
  • “Bound to fail” / “no reasonable chance of success”: Stronger than “weak”. It means there is no credible route to success at trial, even allowing for the possibility of later evidence and procedural steps.
  • “Statute-barred”: Out of time. Tort claims generally have a six-year limit; personal injury claims generally have a two-year limit (subject to “date of knowledge” rules).
  • Tax assessment appeal route vs damages: Tax law typically provides a statutory mechanism to challenge assessments (via appeals). Courts are reluctant to let civil damages actions re-litigate what is, in substance, an assessment dispute.
  • PIAB (Personal Injuries Assessment Board): For many personal injury claims, an application to PIAB is usually required before proceedings can be brought. Here, the Court did not treat PIAB non-compliance as determinative, but it ultimately struck out on other grounds.

5) Conclusion

[2026] IEHC 113 is a practical illustration of the modern strike-out jurisdiction under the amended Order 19 rule 28: where the core facts are essentially undisputed, the court may scrutinise whether any legally recognisable cause of action emerges and whether there is any credible prospect that evidence could substantiate pleaded wrongdoing. The decision also confirms that, although limitation is usually decided at trial or by preliminary issue, strike-out is justified where the chronology is clear and the plaintiff has no realistic answer to the limitation plea.

For future litigants, the judgment underscores that serious allegations—particularly against public bodies—must be pleaded with particularity, anchored in a coherent legal cause of action, supported by a credible evidential basis, and brought within time. Where those elements are absent, Order 19 rule 28 provides an effective and principled route to early disposal.