Tolan v Brindley Manor Federation of Nursing Homes Ltd: High Court Affirms Flexible Approach to Procedural Defects and Nuanced Causation in Fatal-Injury Litigation

Introduction

In Tolan v Brindley Manor Federation of Nursing Homes Ltd ([2025] IEHC 327, High Court, Barr J), the defendant nursing-home operator sought to strike out a wrongful-death claim brought by Mr. Finbarr Tolan following the death of his uncle, Mr. Patrick Concannon. The motion advanced three principal objections:

Locus standi: The plaintiff, although named executor, had not extracted probate.
Absence of a sustainable negligence case: The defendant argued that the plaintiff’s single expert report did not satisfy the “but-for” causation test.
Procedural impropriety: The action was commenced by plenary summons instead of a personal-injury summons required by the Civil Liability and Courts Act 2004 (“CLCA 2004”).

The judgment is significant because it clarifies (i) the court’s remedial discretion when probate has not yet issued, (ii) the circumstances in which apparent pleading defects can be cured rather than punished by dismissal, and (iii) the ongoing debate on causation in clinical-negligence and fatal-injury claims, particularly where the medical evidence is yet uncertain.

Summary of the Judgment

Mr Justice Barr refused to strike out the proceedings. Instead he:

Stayed the action until the plaintiff files an affidavit exhibiting the grant of probate.
Deemed the existing plenary summons and statement of claim to stand “in lieu” of a personal-injury summons, and directed the plaintiff to swear an affidavit of verification.
Rejected the argument that the plaintiff’s case on causation was bound to fail, holding that the issue was “nuanced” and required a full trial.

Accordingly, the strike-out application was dismissed and directions were made to regularise the proceedings.

Analysis

Precedents Cited and Their Influence

Casey v Casey [2023] IEHC 643 — confirmed that a named executor may issue proceedings before probate is extracted, but the action may be stayed until the grant issues. Barr J adopted and applied this approach instead of dismissing.
Quinn v Mid-Western Health Board [2005] 4 IR 1 — restated the orthodox “but-for” causation test in Irish negligence law. The defendant relied on Quinn; the court distinguished it, noting subsequent refinements.
Fairchild v Glenhaven Funeral Services Ltd [2003] AC 32 & McGhee v National Coal Board [1973] 1 WLR 1 — House of Lords authorities permitting a “material contribution/increased risk” test in certain scenarios. Cited by Barr J to illustrate flexibility where scientific certainty is elusive.
Philip v Ryan [2004] 4 IR 241 — recognised recovery for “loss of chance.” Demonstrated that Irish courts have occasionally departed from strict but-for.
O'Malley v National Standards Authority of Ireland [2024] IEHC 500; Barry v Buckley [1981] IR 306; Kelly v AIB [2019] IESC 72 — all endorse the principle that strike-out jurisdiction must be exercised sparingly. Supported the court’s reluctance to terminate the action prematurely.
Davey v Wallace [2025] IEHC 146 — latest interpretation of the recast Order 19 rule 28 RSC governing strike-outs. Confirmed that pre-2023 jurisprudence still guides when an action is “bound to fail.”

Legal Reasoning

Locus Standi:
Barr J accepted that under s 48 Civil Liability Act 1961 only the personal representative (or all dependants jointly/severally) may sue. However, consistent with Casey, a named executor can issue proceedings before probate is extracted. The defect is procedural, not jurisdictional. Remedy: stay pending grant, not dismissal.
Causation and Negligence:
The defendant argued that Dr Soo’s report conceded the outcome “may not have changed,” thus failing the but-for test. The court acknowledged Quinn but highlighted:
- “Material contribution” and “increased risk” doctrines recognised in McGhee/Fairchild.
- Loss-of-chance reasoning in Philip v Ryan.
- The embryonic stage of evidence — the plaintiff might yet obtain stronger expert testimony.
The judge therefore labelled causation “nuanced” and unsuitable for determination on a strike-out motion, which is meant for clear cases only.
Procedural Form (Plenary v Personal-Injury Summons):
Section 10 CLCA 2004 demands a personal-injury summons with a verifying affidavit. Yet s 10(3) empowers the court either to dismiss or to impose compliance directions. The court considered:

“It would not be in the interests of justice to dismiss the plaintiff’s action … solely on the basis that he had proceeded by the wrong form of pleadings.”

Given the plaintiff’s cooperative conduct—providing the will, medical report, and correspondence—the court converted the pleadings in situ and ordered an affidavit of verification.

Impact of the Judgment

Procedural Flexibility: Tolan confirms that Irish courts will prioritise substance over form where a litigant uses the wrong initiating document. Expect more orders deeming plenary summonses to be personal-injury summonses, coupled with verification directions, rather than outright dismissals.
Probate Issues in Fatal-Injury Claims: Affirms that a stay—not dismissal—is the default remedy when probate is outstanding. Executors can safely issue within limitation periods and regularise later.
Causation Debates Re-Opened: Although Quinn remains authoritative, the judgment signals judicial willingness to consider alternative tests (material contribution, loss of chance) in complex medical-negligence contexts, especially involving thromboembolism and post-operative care.
Nursing-Home Standards: By treating the pleaded negligence as “prima facie stateable,” the decision implicitly underscores the heightened vigilance expected of nursing-home staff towards post-surgical residents.
Strategic Guidance for Practitioners: Defence counsel should note that strike-out motions grounded solely on procedural irregularities face an uphill task unless clear prejudice is shown. Plaintiffs should still strive for technical compliance but can rely on the court’s discretionary latitude where genuine mistakes occur.

Complex Concepts Simplified

Grant of Probate: An official court document confirming the executor’s authority to administer an estate. Without it, an executor’s legal standing is incomplete but curable.
Plenary Summons vs Personal-Injury Summons:
- Plenary Summons: traditional, broad-form writ for most civil actions; statement of claim follows.
- Personal-Injury Summons: created by CLCA 2004, obliging detailed particulars and an affidavit of verification at the outset.
Affidavit of Verification: A sworn statement confirming the truth of pleadings. Designed to combat exaggerated or false claims.
‘But-For’ Test: The injury would not have occurred but for the defendant’s negligence. The orthodox causation yardstick in negligence.
Material Contribution / Increased Risk Test: Where precise causation is medically unknowable, courts may impose liability if negligence materially increased the risk of harm that subsequently materialised.
Stay of Proceedings: A temporary halt ordered by the court, often conditional (here, pending probate and verification).
Order 19 rule 28 RSC: Governs the court’s power to strike out pleadings that are frivolous, vexatious, or bound to fail.

Conclusion

Tolan v Brindley Manor is a notable High Court authority on three intertwined procedural and substantive fronts. First, it consolidates the rule that an executor’s failure to extract probate before issuing fatal-injury proceedings is a remediable defect, ordinarily met with a stay rather than dismissal. Second, it showcases judicial readiness to cure pleading errors by deeming a plenary summons as a personal-injury summons, thereby reinforcing a pragmatic, justice-centred approach to civil procedure. Third, and perhaps most intriguingly, the judgment leaves the door ajar for plaintiffs to argue causation on bases other than strict but-for where medical science cannot definitively pronounce on alternative scenarios, especially in post-surgical thromboembolic events. Practitioners should treat the decision as both a shield against overly technical strike-out motions and a reminder that evidential rigour on causation will ultimately determine success at trial. In the broader landscape, the case contributes to an incremental, common-law evolution towards flexibility—both procedurally and analytically—in fatal-injury and clinical-negligence litigation in Ireland.