“Proportional ‘Wasted-Costs’ Orders for Late Amendments” – Commentary on Lobov v McGregor [2025] IEHC 398

1. Introduction

Lobov v McGregor is a High Court of Ireland decision delivered electronically on 11 July 2025 by Ms Justice Nessa Cahill. The dispute, already attracting public attention because it involves two mixed-martial-arts personalities (Artem Lobov as plaintiff and Conor McGregor as defendant), concerns an alleged oral contract for 5 % of the proceeds from “Proper No. 12” whiskey.

The judgment, however, does not decide the substantive contract claim. Instead, it addresses a procedural flash-point: the plaintiff’s motion—brought days before the scheduled eight-day trial—to amend his pleadings so that the alleged agreement is said to have occurred in October 2017 rather than September 2017. The defence insisted that the extremely late change forced the trial to be vacated and generated significant, wasted preparation costs.

Justice Cahill granted leave to amend (reflecting Ireland’s liberal approach to amendments under Order 28, rule 1 RSC) but crafted a novel, proportionate costs solution: the plaintiff must pay 75 % of the defendant’s costs incurred from 18 March 2025 to the aborted first day of trial, with a stay pending the substantive outcome. This “partial wasted-costs” order modernises the older “costs of the day” concept and clarifies how Irish courts should apportion costs where an amendment vacates a trial close to hearing.

2. Summary of the Judgment

The court freely allowed the amendment—changing the pleaded date from September to October 2017—because Rule 1 permits amendments “at any stage” provided the real controversy can be determined and no irremediable prejudice arises.
Although the defendant’s opposition centred on the lateness of notice (days before trial), Justice Cahill found no “irremediable” prejudice; any disadvantage could be cured by costs and case-management directions.
On costs, the court rejected both extremes:
- the plaintiff’s proposal to confine costs only to new steps generated by the amendment; and
- the defendant’s bid for all abortive trial costs.
Instead, the court ordered the plaintiff to pay 75 % of costs incurred from the date the plaintiff first possessed information necessitating amendment (18 March 2025) to the vacated first trial day, covering counsel fees, witness expenses, solicitor preparation, and the forthcoming amended defence.
A stay on the costs order was granted to allow possible set-off against future costs orders.
No order for the costs of the amendment motion itself, with liberty to re-apply.

3. Analysis

3.1 Precedents Cited

Porterridge Trading Ltd v First Active PLC [2007] IEHC 313 (Clarke J)
– Key authority emphasising that amendments should usually be allowed unless irremediable prejudice exists, and that inadequate explanation for delay rarely defeats an otherwise proper amendment.
Stafford v Rice [2022] IECA 47
– Summarises the breadth of discretion under Order 28, Rule 1 and the balancing of prejudice.
Wolfe v Wolfe [2001] 2 IR 389 (Herbert J)
– Discussed the (now archaic) “costs of the day” concept; provided a template for confined costs orders when late amendments cause adjournment.
Bourgoine v Taylor (1878) 47 LJ Ch 542
– Historical definition of “costs of the day” as “all costs thrown away because of the slip”.

Justice Cahill followed the liberal amendment approach in Porterridge, underscoring the principle that courts should not conduct mini-trials on the merits of proposed amendments; instead, they should focus on prejudice and remedial measures. On costs, Wolfe offered the most useful comparative guidance, but its rigid “costs of the day” language was modernised.

3.2 Legal Reasoning

Amendment Granted
- Order 28, Rule 1 permits amendments “at any stage … on such terms as may be just”.
- No authority refused amendment solely due to delayed disclosure where no irremediable prejudice exists.
- The explanation for delay (rediscovered messages, phone, verification process) was not challenged in cross-examination; thus the court accepted it prima facie.
Cost-Prejudice Calibration
- The defence suffered real but quantifiable prejudice: witness interviews, timeline analyses, and documentary review focused on September 2017.
- However, some earlier work remains useful; hence ordering the entire trial costs would over-compensate.
- A 75 % apportionment, anchored to the date on which the plaintiff first knew of the potential change (18 March 2025), strikes a just balance.
- A stay avoids liquidity pressure and recognises that the eventual winner may receive a broader costs order.
Modernisation of Terminology
- Justice Cahill explicitly eschewed terms such as “wasted costs” or “costs thrown away”, preferring clear, proportional language aligned with Order 99 (post-2019 Rules).

3.3 Impact of the Judgment

Precedential Value on Costs: The judgment articulates a structured, percentage-based approach to compensating parties when last-minute amendments vacate trial dates. Practitioners can now cite Lobov as authority for partial, rather than binary (all-or-nothing), wasted-costs orders.
Guidance on Timing Benchmarks: By pegging liability from the date a party first possessed information requiring amendment, the court identifies an objective trigger for future cost assessments.
Terminology Shift: The decision effectively retires the Victorian “costs of the day” phrase for modern litigation management vocabulary, aligning practice with re-numbered Order 99.
Procedural Discipline: Litigants and their advisers are put on notice: failure to disclose amendment needs promptly may expose them to significant (though calibrated) cost-shifting.
Commercial Litigation Strategy: For high-stakes commercial matters, the ruling incentivises early case-theory verification and transparent engagement with opposing counsel to avoid expensive sanctions.

4. Complex Concepts Simplified

Order 28, Rule 1 (RSC): The Irish procedural rule allowing courts to grant amendments to pleadings “at any stage … on such terms as may be just”, prioritising substantive justice over procedural formality.
Party-and-Party Costs vs Solicitor-and-Own-Client Costs: Party-and-Party: Standard measure; recovers costs reasonably incurred for advancing/defending the case.
Solicitor-and-Own-Client: A rarer, more generous scale; covers virtually all costs a solicitor may bill the client. The defendant in Lobov sought only the former.
Costs “Thrown Away” / “Wasted Costs”: Historic expressions for expenses that have become useless because a hearing is adjourned or the work must be redone. Justice Cahill modernises the language by framing the remedy in percentage terms rather than labels.
Stay on Costs Order: A pause on enforcement. Here, it prevents any immediate payment until the substantive trial determines final costs, enabling set-off if appropriate.

5. Conclusion

Lobov v McGregor introduces a pragmatic template for addressing the costs fall-out of late pleading amendments: (1) grant the amendment to achieve substantive justice, but (2) impose a proportionate cost sanction tied to the avoidable prejudice created, and (3) use case-management oversight to prevent further delay.

By selecting a 75 % apportionment from the date knowledge arose, Justice Cahill signals that courts will neither rubber-stamp nor punish litigants excessively; instead, they will calibrate remedies to fairness and efficiency. Irish litigators must therefore act swiftly when new facts jeopardise existing pleadings, lest they incur a similar, sizeable share of their opponent’s wasted costs. In the broader procedural landscape, the judgment refines post-2020 Irish costs jurisprudence, replacing antiquated terminology with a flexible, percentage-based methodology poised to influence future case-management rulings.