Sparing Use of Early Dismissal in Product Liability Claims under Amended O.19, R.28: Insights from Mulhall v. Allergan Ltd

1. Introduction

In the recent High Court decision of Mulhall v. Allergan Ltd ([2025] IEHC 130), Ms. Justice Marguerite Bolger addressed the threshold for dismissing product liability proceedings at an early stage under Order 19, rule 28 (as amended) of the Rules of the Superior Courts (RSC). The case arose from alleged defects in breast implants manufactured by the defendant, Allergan Limited. The plaintiff, Denise Mulhall, claimed that the early ruptures of her implants constituted defects in breach of the Liability for Defective Products Act 1991.

Allergan Limited sought to dismiss Ms. Mulhall’s claim, arguing that it was bound to fail due to insufficient particularization of how the implants were defective. In the alternative, Allergan sought an order directing delivery of updated pleadings and an amended indorsement of claim. This commentary offers an in-depth look at the Court’s reasoning, focusing on the high threshold for early dismissal, the pivotal significance of relevant procedural steps (including discovery and inspection), and the implications for future product liability litigation.

2. Summary of the Judgment

The High Court refused the defendant’s application to dismiss the plaintiff’s action, concluding that the plaintiff had pleaded enough factual allegations—specifically, the apparently short lifespan of the implants before rupture—to raise a potentially valid claim under the 1991 Act. The Court also refused to require the plaintiff to amend her pleadings before the defendant filed its defence.

While the Court recognized that the plaintiff’s pleadings were relatively sparse and that further particulars might eventually be warranted, it emphasized that discovery, expert reports, and the normal procedural sequence of pleadings should occur before summarily dismissing a claim. Further, because the defendant itself possessed three of the allegedly defective implants since before the commencement of proceedings, the Court found it inappropriate to penalize the plaintiff for not having pleaded further technical details at this early stage.

3. Analysis

A. Precedents Cited

Salthill Properties Ltd. v. Royal Bank of Scotland [2009] IEHC 207: The Court relied on Clarke J.’s statement that an application to dismiss should only succeed where it is abundantly clear that a plaintiff’s case is bound to fail. Even if a plaintiff’s case appears weak at the outset, vital evidence or clarity may emerge through discovery and other procedural mechanisms. The Court in Mulhall applied these principles to reject the defendant’s dismissal motion.

Keohane v. Hynes [2014] IESC 66: This Supreme Court authority was cited to support the position that the jurisdiction to dismiss a claim summarily must be used sparingly, especially when issues of fact and law require fuller exploration at trial.

Harvey v. DePuy [2016] IEHC 382: Although this case dealt with compelling replies to particulars after a defence had already been filed, it established the principle that plaintiffs in product liability cases under the 1991 Act must ultimately provide enough detail on the alleged defect. However, in Mulhall, the Court distinguished applications to compel further particulars from motions to dismiss a claim entirely, noting that dismissal is a far more drastic remedy.

Other cases, such as ASI Sugar Ltd v. Greencore Group Plc [2003] IEHC 131 and Mahon v. Celbridge Spinning Company Ltd [1967] IR 1, were similarly distinguished by the Court because they focused on compelling particulars—rather than summarily dismissing actions.

B. Legal Reasoning

Justice Bolger’s core legal reasoning centered on the standard for invoking Order 19, rule 28 to strike out a claim. Under the amended rule, the Court may dismiss a claim where it:

1. Discloses no reasonable cause of action,
2. Amounts to an abuse of process,
3. Is bound to fail, or
4. Has no reasonable chance of succeeding.

After carefully reviewing these criteria, the Court concluded that the plaintiff’s pleadings, while concise, alleged sufficient facts—namely the premature rupture of the implants—to survive a dismissal motion. Significantly, the Court explained that the discovery process and any inspection of the implants in the defendant’s possession could yield further evidence of defect. The Court underscored that a dismissal for insufficiency of pleading should be a last resort, permissible only if it is abundantly clear that no valid claim can emerge.

The Court also criticized the defendant’s strategy of pursuing dismissal without first taking other procedural steps, such as compelling replies to particulars or filing a defence. The defendant had historically indicated it would file a defence, but then withheld it pending further details from the plaintiff. Because the relevant implants had been with the defendant for years, Justice Bolger emphasized that the usual procedure of exchanging pleadings and then proceeding to discovery should not be circumvented.

C. Impact on Future Cases and the Relevant Area of Law

This decision amplifies the principle that Irish courts will be slow to dismiss product liability proceedings at an early stage unless they are patently unstateable. Specifically:

• Revised Order 19, Rule 28: The amended rule now explicitly integrates the Court’s powers to strike out pleadings with consideration of potential affidavit evidence. Nevertheless, the Court’s caution in Mulhall reaffirms that judges remain reluctant to exercise this power prematurely without affording the plaintiff a meaningful opportunity to gather and present evidence.
• Product Liability Under the 1991 Act: Plaintiffs alleging defective products must eventually particularize their claims (i.e., specify how a product is defective), but they may not be forced to identify every technical detail prior to discovery or receipt of the defendant’s pleaded defence.
• Evolving Litigation Strategy: Defendants may wish to consider bringing motions to compel further particulars rather than seeking dismissal outright. The threshold for dismissal remains high and is only appropriate in cases where it is effectively impossible for the plaintiff to succeed.

4. Complex Concepts Simplified

Several legal and procedural concepts are key to understanding this Judgment:

• Order 19, Rule 28: A provision of the Rules of the Superior Courts governing the early dismissal of claims or defences for lack of any reasonable prospect of success. The rule was recently amended, but the overarching principle remains that summary dismissal is a severe measure, to be invoked sparingly.
• “Bound to Fail” Standard: This means that, even if one assumes everything the plaintiff claims is true, the action must have no prospect of succeeding at trial. The Court stressed that if the plaintiff might secure corroborating evidence through discovery or inspection, the case is not “bound to fail.”
• Product Liability under the 1991 Act: This law imposes liability for defective products. To succeed, a plaintiff must prove that a product was defective (i.e., not meeting the standard of safety reasonably expected). Plaintiffs frequently require expert input and sometimes rely on the discovery/inspection of the product itself to demonstrate the nature of the defect.
• Procedural Steps (Discovery & Inspection): Before a court will dismiss a case, it expects that normal procedural steps—including discovery and the filing of statements of claim/defence—be used to clarify facts. Inspection allows experts to examine the allegedly defective product. Only after exploring these can a court determine whether the claim truly lacks merit or stands a chance.

5. Conclusion

The judgment in Mulhall v. Allergan Ltd offers a clear reminder that courts in Ireland will only dismiss a plaintiff’s claim at an early stage if it meets the high bar of being unquestionably unwinnable. While product liability cases do place an onus on plaintiffs to detail how a product is defective, Mulhall underscores that such particulars may be refined after the defence is filed and once discovery or inspection reveals pertinent evidence.

In dismissing Allergan’s motion, the Court highlighted the importance of allowing procedural steps to run their course. This ensures that plaintiffs with potentially meritorious claims are not unfairly prevented from testing their case at trial, particularly where key evidence—such as the implants themselves—is in the control of the defendants. Consequently, Mulhall v. Allergan Ltd contributes significantly to the jurisprudence under the newly amended O.19, r.28, reaffirming that summary dismissal remains a draconian remedy that should be exercised sparingly.