Mulhall v Allergen Ltd (Approved)

Factual and Procedural Background

The Plaintiff underwent breast augmentation surgery on 3 February 2010, during which implants manufactured by the Defendant were inserted. In 2014, the Plaintiff experienced pain and swelling in her left breast, and a rupture of the left implant was confirmed. Both implants were removed in surgery on 24 July 2014, with the ruptured implant exhibiting a large flap rupture and sticky silicone gel emanation. The Plaintiff issued a Circuit Court personal injuries summons in May 2016 referring to the left implant rupture.

In January 2017, the Plaintiff experienced further pain and swelling in the left breast, and a rupture in a new left implant was diagnosed and removed in February 2017. Additional surgery was required in March 2017 to remove serosanguinous fluid. The Plaintiff issued a High Court personal injuries summons in August 2019 referencing the rupture of the implant capsule. The Circuit Court proceedings were subsequently transferred to the High Court and consolidated with the High Court proceedings.

The Plaintiff claims that following both surgeries, the ruptured implants were sent by her surgeon to the Defendant. The Defendant eventually confirmed possession of three implants but denied possession of a fourth implant referenced by the Plaintiff. The Defendant raised particulars seeking detailed information about the alleged defects and expert evidence, which the Plaintiff responded to in limited terms, asserting the need for independent expert opinion and discovery. The Defendant has not yet filed a defence, citing insufficient particulars from the Plaintiff, while the Plaintiff has sought inspection and discovery only recently, justifying the delay based on the Defendant's prior commitment to file a defence.

The Defendant applied to dismiss the proceedings pursuant to Order 19, rule 28 of the Rules of the Superior Courts, arguing the Plaintiff failed to disclose a reasonable cause of action and that the claim is bound to fail. Alternatively, the Defendant sought an order directing the Plaintiff to deliver updated pleadings and an amended indorsement of claim. The Plaintiff opposed dismissal, contending that the pleadings, particularly the fact of implant ruptures, sufficiently disclose a cause of action and that inspection and discovery are necessary to advance the case.

Legal Issues Presented

1. Whether the Plaintiff's pleadings disclose a reasonable cause of action under the 1991 Liability for Defective Products Act.
2. Whether the Plaintiff's claim is bound to fail, justifying dismissal under Order 19, rule 28.
3. Whether the Court should order the Plaintiff to deliver updated pleadings and an amended indorsement of claim.
4. The appropriate timing and sequencing for the Defendant to file a defence and for the parties to seek particulars, inspection, and discovery.

Arguments of the Parties

Defendant's Arguments

• The Plaintiff's pleadings are deficient and fail to disclose a reasonable cause of action.
• The Defendant is at a disadvantage as it does not know the precise nature of the alleged defects or how the implants were defective.
• The Plaintiff conceded that implant rupture is a known risk, undermining the claim that rupture alone constitutes a defect.
• The Defendant has sought particulars and expert evidence to clarify the claim but the Plaintiff has not provided adequate responses.
• The Defendant has not filed a defence because the Plaintiff has not furnished sufficient particulars, which impedes the Defendant's investigations.
• The Defendant criticizes the Plaintiff for the late request for inspection of the implants in their possession.

Plaintiff's Arguments

• The fact that the implants ruptured within three to four years of implantation is itself indicative of a defect.
• The Plaintiff has pleaded sufficient facts to put the Defendant on notice of the case to be met at trial.
• Inspection and discovery are necessary to provide further particulars and expert evidence, which are not presently available to the Plaintiff.
• The Plaintiff justifies the delay in seeking inspection due to the Defendant's prior commitment to file a defence and the expectation of receiving it before proceeding.
• The Plaintiff contends that the Defendant should file its defence based on the current pleadings, after which further procedural steps can be taken.
• The Plaintiff argues that the Defendant's motion to dismiss is effectively an attempt to obtain further and better particulars, which is premature at this stage.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Keohane v. Hynes [2014] IESC 66	Application to dismiss is sparingly exercised; not for summary resolution of issues; requires high confidence that claim is bound to fail.	The Court cited this to affirm that dismissal should only occur where the claim is clearly bound to fail and not at an early procedural stage.
Salthill Properties Ltd. v. Royal Bank of Scotland [2009] IEHC 207	Proceedings disclose a potentially valid claim if facts pleaded would give rise to a cause of action if proven.	The Court relied on this to accept the Plaintiff's pleaded facts as sufficient to disclose a potentially valid claim at this stage.
ASI Sugar Ltd v. Greencore Group Plc [2003] IEHC 131	Claims regarding adequacy of replies to particulars.	Referenced as authority on particulars but distinguished as not involving dismissal applications.
Harvey v. DePuy [2016] IEHC 382	Requirement for plaintiff to establish defects with sufficient particularity in product liability cases.	Considered persuasive in context of compelling particulars but not binding for dismissal at early stage; no dismissal ordered on this basis.
Murphy v. DePuy [2016] IECA 15	Claims concerning adequacy of particulars and procedural motions.	Referenced but distinguished as not involving dismissal applications.
Mahon v. Celbridge Spinning Company Ltd [1967] IR 1	Motions compelling particulars of contributory negligence plea.	Referenced for procedural context on particulars.
Morgan v. ESB [2021] IECA 29, [2022] 1 IR 187	Court of Appeal decisions overturning trial decisions based on unpleaded issues.	Referenced to illustrate limits on trial determinations beyond pleadings.
McGeoghan v. Kelly & ors [2021] IECA 123	Court of Appeal decisions on trial determinations beyond pleadings.	Referenced similarly to Morgan v. ESB.

Court's Reasoning and Analysis

The Court approached the Defendant's application under Order 19, rule 28, which allows dismissal of claims that disclose no reasonable cause of action, amount to abuse of process, are bound to fail, or have no reasonable chance of success. The Court emphasized that this jurisdiction is to be exercised sparingly and that the Plaintiff's pleaded facts must be accepted as true for the purposes of the application.

The Plaintiff's claim is based largely on the fact that the implants ruptured within three to four years of implantation, which the Plaintiff asserts is itself indicative of a defect. The Defendant contended that implant rupture is a known risk and that the Plaintiff's pleadings lack sufficient particularity about the nature of the defects and expert evidence. However, the Court noted that the Defendant had not filed a defence and had not pursued a motion to compel further particulars despite raising such requests.

The Court also considered the procedural history, including the Defendant's possession of three implants since shortly after the surgeries and the Plaintiff's recent requests for inspection and discovery. The Court accepted the Plaintiff's explanation for the delay in seeking inspection, based on the Defendant's prior assurances to file a defence.

Drawing on precedent, particularly Salthill Properties, the Court held that dismissal at this stage was inappropriate because the Plaintiff had disclosed a potentially valid claim and the high threshold for dismissal had not been met. The Court recognized that further procedural steps, including filing a defence, discovery, and possibly compelling particulars, may clarify the issues and allow for a future application to dismiss if warranted.

The Court declined to order the Plaintiff to deliver updated pleadings or an amended indorsement of claim at this time, noting that the Plaintiff asserted she could not provide further particulars without inspection and expert evidence. The Court emphasized the importance of sequencing procedural steps appropriately.

Accordingly, the Court refused the Defendant's application to dismiss and ordered the Defendant to file its defence. The Court acknowledged that the Defendant may later seek further particulars once the defence is filed.

Holding and Implications

The Court REFUSED the Defendant's application to dismiss the Plaintiff's proceedings pursuant to Order 19, rule 28.

The Defendant is ordered to file its defence without further delay. The Plaintiff is not required at this stage to deliver updated pleadings or an amended indorsement of claim. The decision preserves the Plaintiff's ability to proceed with the claim based on the pleaded facts, recognizing that further procedural steps—such as discovery, inspection, expert evidence, and possibly compelling particulars—may be necessary to clarify the issues.

No new precedent was established; the Court applied established principles emphasizing the sparing use of dismissal applications at early procedural stages and the acceptance of pleaded facts for the purpose of such applications.

Indicatively, the Court viewed that the Plaintiff is entitled to costs of both the Defendant's motion to dismiss and the Plaintiff's motion for judgment in default of defence, to be adjudicated in default of agreement.