THE COURT OF APPEAL
Record Number: 2025 108
High Court Record Number: 2022/3294P
Neutral Citation Number [2025] IECA 111
BETWEEN/
DENISE MULHALL
PLAINTIFF/RESPONDENT
-AND-
ALLERGAN LIMITED
DEFENDANT/APPELLANT
JUDGMENT of Mr. Justice Noonan delivered ex tempore on the 16th day of May, 2025
1. This an application brought by the defendant for a stay, pending determination of the appeal, on the order of the High Court of the 1st April 2025 directing that unless the defendant delivers its defence within six weeks of the date of that order, judgment will be entered in default against the defendant in favour of the plaintiff.
2. The relevant chronology of this matter is as follows:
3rd February 2010 - The plaintiff underwent a breast augmentation procedure which utilised implants manufactured by the defendant.
The plaintiff pleads that in 2014, she began to suffer pain and swelling in her left breast when it was discovered that the implant had ruptured.
24th July 2014 - Both implants were removed and, the plaintiff claims, were sent to the defendant. The removed implants were replaced with new ones also manufactured by the defendant.
20th May 2016 - The plaintiff instituted proceedings in the Circuit Court claiming damages for personal injuries.
2nd June 2016 - The defendant served a notice for particulars, which at para 5) stated: "Insofar as it is alleged at paragraph 8 (a) and 8(b) of the summons that the defendant caused the incident and/or the injuries complained, please state how the defendant caused these matters in circumstances where the defendant has analysed the device in question and has concluded that the root cause of this incident was contact with a sharp instrument."
January 2017 - The plaintiff developed further swelling in her left breast and it was allegedly found that the new implant had ruptured again.
February 2017 - Both implants were removed, returned to the defendant and replaced with new implants from a different manufacturer.
29th June 2017 - The plaintiff's solicitors wrote to the defendant's solicitors seeking their defence.
27th October 2017 - The defendant's solicitors wrote saying that they would not be in a position to deliver their defence until they received discovery of certain medical records from the plaintiff. The plaintiff's solicitors initially declined to provide discovery and continued to call for a defence.
3rd May 2018 - The defendant's solicitors again refused to deliver their defence until they got discovery which the plaintiff eventually agreed to provide.
14th May 2019 - The plaintiff's solicitors delivered an affidavit of discovery and again sought the defendant's defence.
August 2019 - The plaintiff issued fresh proceedings in the High Court arising out of the issues concerning the second set of implants.
18th September 2019 - The defendants again declined to deliver their defence in the Circuit Court proceedings on the basis that the plaintiff's discovery was inadequate.
21st September 2020 - The defendant's solicitors wrote suggesting that the proceedings be consolidated.
31st March 2021 - The defendant's solicitors wrote again seeking discovery of medical records, this time in relation to the High Court proceedings. On the 16th August 2021 the defendants threatened motions for discovery in both sets of proceedings.
1st September 2021 - The plaintiff's solicitors provided further medical records by way of discovery.
8th April 2022 - The plaintiff's solicitors sought the defendant's defence in the High Court proceedings having replied to the defendant's notice for particulars.
12th April 2022 - The defendant raised further particulars and complained about the adequacy of those already furnished.
7th September 2023 - The plaintiff's solicitors again sought delivery of a defence within 28 days.
29th September 2023 - The defendant's solicitors sought time, saying "Please note that we are progressing with our investigations and hope to be in a position to deliver our Defence shortly. We ask that you bear with us in this regard."
10th November 2023 - The defendant's solicitors sought more time to deliver their defence, explaining that new counsel had been recently instructed who needed time to read into the matter and "We confirm that our Defence will be served as soon as possible, and a motion will not be necessary." In her second affidavit herein, the defendant's solicitor rather surprisingly avers that this cannot be interpreted as a binding commitment or a legal or enforceable undertaking. It would be a regrettable state of affairs if a solicitor's confirmation that something will be done requires analysis to determine if a legally binding obligation has been undertaken before it can be relied upon.
2nd February 2024 - The plaintiff's solicitors allowed a further 28 days for the defence.
18th April 2024 - The plaintiff's solicitors issued a motion for judgment in default of defence.
19th June 2024 - The defendant's solicitors responded saying they could not deliver a defence because the plaintiff had not adequately replied to its notice for particulars of the 12th May 2022, over two years earlier. In the same letter, the defendant's solicitors asked the plaintiff to confirm that she had retained the original implants for inspection despite the fact that eight years earlier, in their notice for particulars of the 2nd June 2016, the defendants confirmed that they had examined the allegedly defective prosthesis removed in 2014. It is important to note that this was the first occasion that the defendant sought to suggest that they would be unable to deliver a defence absent these particulars. At all stages up to this point in time, the defendant had made a different case, namely that it could not deliver its defence until it got discovery. When that discovery was made, it agreed to deliver its defence but never did so and offered no explanation for not doing so.
5th July 2024 - The defendant brought a motion to dismiss the plaintiff's claim on the basis that it is frivolous and vexatious and discloses no cause of action.
17th September 2024 - While these motions were pending, the plaintiff's solicitors sought confirmation that the defendant had retained all four implants.
15th January 2025 - After multiple reminders from the plaintiff's solicitors, the defendant's solicitors eventually confirmed that they had retained three implants and had no knowledge of a fourth.
4th March 2025 - The High Court delivered its judgment on both motions, refusing the defendant's application for a dismiss.
1st April 2025 - the court made an order giving the defendant six weeks to deliver its defence failing which, judgment in default would be entered against it.
3. The defendant's application is grounded upon the affidavit of its solicitor Ms. Lisa Joyce. In this affidavit, Ms. Joyce avers that despite multiple notices for particulars and replies thereto, the plaintiff's claim remains unparticularised leaving the defendant unaware of the case it has to meet. Consequently, she says, the defendant cannot deliver a meaningful defence that complies with s. 13 of the Civil Liability and Courts Act. 2004. She says that at best, the defendant could plead a purely "on proof" defence which would be meaningless.
4. She says that while the plaintiff has answered requests for particulars on the basis that the nature of the defect is a matter for expert evidence following examination of the implants, which has not yet taken place by the plaintiff at any rate, this would give rise to the necessity for an amended summons and amended defence adding extra costs to the proceedings. This would be a concern for her client who is facing a significant range of similar actions relating to its products in this jurisdiction. She points to this giving rise to problems concerning unfocussed discovery and vague pleadings. She says that if the defendant wins the case, all of the potential additional costs incurred in this scenario will be irrecoverable since there is no evidence that the plaintiff would be able to discharge any adverse costs order.
5. She goes on to aver at para. 18: -
"The central dispute in both the motion for judgment in default and the motion to dismiss/stay proceedings is whether the plaintiff/respondent is obliged to identify a defect in the breast implants in its pleadings (which seeks damages for a defective product) and, if so, whether it should be required to do so prior to requiring Allergan to deliver a defence. Put in another way, should Allergan be required to deliver a defence in circumstances where the plaintiff's/respondent's pleadings have not identified a defect in the breast implants?"
6. She says that if the plaintiff is permitted to retain the benefit of the High Court order, it will enable her to proceed with her case to an advanced stage before informing the defendant of the relevant defect. She says that if a stay is granted but the plaintiff ultimately succeeds in the appeal, the benefit would have been preserved, subject only to "some delay in the delivery of the defence" and the close of pleadings. She points to the fact that the plaintiff did not look for a defence until the 7th September 2023 many years after the commencement of proceedings.
7. Ms. Joyce says that if the stay is not granted and the defendant wins the appeal, it will have lost the benefit it seeks to obtain, namely the reordering of the sequence of pleading obligations such that the plaintiff be required to identify an alleged defect in the product prior to requiring the defendant to deliver a defence. She says that the refusal of a stay might result in the defendant obtaining no benefit from the appeal, even if it wins.
8. Ms. Joyce's affidavit was replied to by the plaintiff's solicitor, Mr. Hugh O'Neill. He avers that the failure of the implant within 4 years meets the definition of "defective product" as defined in s. 5 of the Liability for Defective Products Act, 1991 and its producer is liable unless it can establish one of the defences provided for in s. 6.
9. He refers to the fact, to which I have already alluded, that the defendant undertook to deliver a defence in open correspondence and has never offered any explanation for reneging on its undertaking, binding or not, to do so. He also points to the fact that the defendant never pursued the question of further and better particulars by way of motion prior to agreeing to put in its defence. He avers that the defendant only changed its stance concerning the delivery of the defence after a motion for default was issued.
10. He says that the defendant acknowledges that it would be able to deliver a defence but that it might require amendment in due course. He also says that the proceedings have been significantly delayed because of the continued refusal of the defendant to provide an inspection of the impugned implants. This is strongly disputed by Ms. Joyce in her second affidavit, but is irrelevant for the purposes of this application. He concludes by saying that the defendant has demonstrated no bona fide grounds of appeal or any prejudice by having to put in a defence, again disputed.
11. Although the defendant's application in the High Court is stated to be an application to dismiss the proceedings, the defendant appears to candidly concede that this is not the objective. Rather the purpose is different from that stated, namely, to determine the sequencing of pleading, a novel approach to say the least. As matters currently stand, there is an impasse between the parties with the defendant saying it cannot put in a defence until the plaintiff identifies the defect, and the plaintiff saying it cannot identify the defect until she gets an expert report and discovery, which in the normal way would post-date the defence.
12. It seems to me that matters such as sequencing of pleadings, which the defendant says is the issue here, are essentially case management issues and insofar as this appeal concerns the appeal of a case management order, in my view I should approach the stay application from that perspective. In argument today, counsel for the defendant disagrees with that characterisation but in my view, the sequencing of pleadings is fundamentally a matter for the court of first instance, in the normal way by case management in the event of dispute.
13. In that regard, the observations of Clarke J. (as he then was) in the Supreme Court in Dowling v Minister for Finance [2012] IESC 32 considering the parameters within which an appellate court might appropriately consider an appeal from a case management order are apposite. He said (at para. 3.1): -
"The trial court must retain a very large measure of discretion over the directions which are appropriate and the measures to be adopted in the event of failure to comply. There would be no reality to the achievement of the undoubted advantages which flow from case management if this Court were, on anything remotely resembling a regular basis, to entertain appeals from parties who were dissatisfied with either the precise directions given or orders made by the Court arising out of failure to comply."
14. He went on to acknowledge the high threshold that applies to such appeals and observed (at para. 3.5): -
"...it seems to me that this Court should only intervene if there is demonstrated a degree of irremediable prejudice created by the relevant case management directions such as could not reasonably be expected to be remedied by the trial judge (or at least where the chances of that happening were small) and where therefore, unusually, the safer course of action would be for this Court to intervene immediately to alter the case management directions."
15. These observations were cited with approval by this Court in Tracey v Burton & Ors. [2023] IECA 106. It is therefore clear that the threshold for success in an appeal of this nature is a high one. That, in turn, is relevant to the standard I must apply in considering whether to grant a stay on an order of the High Court as set out, again by Clarke J., in Okunade v MJE [2012] 3 IR 152. In essence, the overriding consideration for any appellate court in granting a stay is to determine where the greatest risk of injustice lies. It is also relevant to note from Okunade that in calibrating that risk, the court is entitled to have regard to, and place all due weight on, the strength or weakness of the appeal. Of course, if there are not even arguable grounds of appeal, then as Clarke J. observes, there can be no basis for the grant of a stay.
16. I think the first thing to be said about this case is that it has been going on for far too long. It is now some 11 years since the first rupture occurred. In saying that, I do not seek to attribute blame specifically to either side, but it is to my mind clear that both sides have contributed significantly to that delay. What the delay means however is that it is, in my view, imperative that this case should proceed to trial as soon as possible.
17. It has to be said that the defendant has at every turn resisted delivering its defence. It is inaccurate for Ms. Joyce to suggest that the plaintiff only started to look for a defence in late 2023, although in her second affidavit she clarifies that this relates to the consolidated proceedings. I am not sure this makes much difference. In fact, the correspondence to which I have referred above in the chronology makes clear that the plaintiff has been seeking a defence from the defendant since at least June 2017, almost 8 years ago, in the Circuit Court proceedings, at any rate where presumably the same issues arise. For some 7 of those 8 years, the defendant has staunchly resisted delivering a defence on the sole basis that it required discovery from the plaintiff in order to do so. When that discovery was eventually furnished, the defendant repeatedly sought the plaintiff's indulgence to deliver a defence without at any time prior to the issue of a motion for judgment seeking to suggest that it could not do so because it was unable to plead properly.
18. I regret to say that I find the suggestion that the absence of particularity in the plaintiff's pleading renders the defendant unable to understand the case it has to meet not only represents a total volte-face from its previously expressed position but also is difficult to comprehend in the light of what has transpired to date. If there is a deficiency in particulars furnished by any party, the remedy is to bring a motion seeking to compel delivery of those particulars. In the normal way, it is certainly not to bring a motion to dismiss the claim as disclosing no cause of action. As the High Court judge noted on more than one occasion in her judgment, no such motion was ever brought by the defendant and the plaintiff might reasonably have thought in the light of that that the defendant was satisfied with the particulars and the reasonably extensive discovery afforded by the plaintiff.
19. Instead, when the plaintiff finally and belatedly issued a motion for judgment, the response was to say that the case is inadequately pleaded and the defendant does not understand the case it has to meet. That suggestion is somewhat unimpressive when one considers that as long ago as 2016, the defendant considered itself able to state within its pleadings that it had analysed the implant and determined that the cause of the rupture was contact with a sharp instrument. It is difficult to understand how the defendant can credibly suggest that it is entirely in the dark in relation to this claim having been in a position to state the cause of the event complained of so long ago following undoubtedly detailed testing and analysis of the first implant.
20. I am also of the view that it is, at the very least, highly debatable as to whether the plaintiff's claim is pleaded adequately to enable a defence to be delivered. Certainly, the High Court judge thought it was and the plaintiff's solicitor has advanced his own reasons in that respect.
21. The plaintiff has pleaded res ipsa loquitur for understandable reasons in circumstances where it is apparently not in dispute that she underwent implantation of the defendant's implants, two of which subsequently ruptured. For my part, I have some difficulty in comprehending how it can be said that such a pleading discloses no cause of action but that is the essence of the defendant's motion.
22. It must also be remembered that this is an appeal from an interlocutory application and both this Court and the Supreme Court have indicated on multiple occasions that an appellate court will generally not interfere with an interlocutory order made by the court of first instance unless it is clearly established that it falls outside the range of judgment calls available to that court. Accordingly, even if one were to characterise the order in this case as other than an order in the nature of case management, it remains the position that the threshold for a successful appeal is a high one. The relevance of that observation in the context of a stay application is that where the appeal is a weak one, as I am satisfied this is, this militates to a significant extent against the grant of a stay unless the prejudice to the defendant is so serious that a stay must be granted to avoid a potentially serious injustice to the party seeking it.
23. Bearing that in mind, I must also consider where the greatest risk of injustice lies in deciding to grant or refuse a stay. As I understand it, this matter is in the Directions List on the 30th May when it is likely it will be given a date for hearing some time in the Michaelmas Term. If judgment is reserved, as normal, then it is reasonably likely that it might not be delivered until early in 2026 by which time the High Court case will have been delayed by at least eight months and quite possibly longer. That seems to me to represent a very significant prejudice to the plaintiff in particular in the context of my previous observation that it is imperative this matter come to trial as quickly as possible.
24. As against that, I do not see any particularly significant prejudice to the defendant by having to put in its defence now in accordance with the order of the High Court. It is true to say that some additional costs may be incurred by the time this appeal is finally determined, and there may be some extra costs if there is a subsequent need to amend it due to updated particulars following inspection. However, I do not find persuasive the argument by the defendant, a significant multinational corporation, that it may not be able to recover these costs from the plaintiff, apparently based in any event on assumption. The same applies equally to the suggestion that this will give rise to all sorts of fishing discovery application against which the defendant should be protected. If such applications are made, the defendant is more than capable of addressing such an argument to the High Court in opposing them.
25. As the plaintiff points out, the defendant has never attempted to explain its very significant change of position late in the day about delivering its defence, and it is difficult to resist the conclusion that the application in the High Court and this appeal are tactical in nature. As such, and for the reasons already explained, I am satisfied that while the appeal may be barely arguable, it is no more than that. That factor, coupled with balancing the respective prejudices to each side, leads me to conclude that this application must be dismissed.
Result: Application Dismissed