The judgment in Mulhall v Allergan Limited [1] arises from an application brought by the defendant to dismiss the plaintiff's claim for failing to disclose a reasonable cause of action. It is noteworthy for insurers that the courts will only exercise their power to dismiss on this ground sparingly.
Background
On 3 February 2010, the plaintiff underwent breast augmentation surgery, during which implants manufactured by the defendant were used in both breasts. In 2014, the plaintiff experienced pain and swelling in her left breast. A rupture of the left implant was confirmed. Both implants were removed in July 2014. The plaintiff issued a Circuit Court Personal Injuries Summons in May 2016 which referred to the left implant having ruptured.
The plaintiff experienced further pain and swelling in her left breast in January 2017. A rupture of the new left implant was diagnosed and it was removed. The plaintiff then issued a High Court Personal Injuries Summons in August 2019. The Circuit Court proceedings were later transferred to the High Court and both proceedings were consolidated.
In their Notice for Particulars, the defendant queried what inherent defect was alleged by the plaintiff in light of her reliance on the Liability for Defective Products Act 1991, and whether she had supportive expert evidence confirming that the implants were defective. The defendant also requested an inspection of the implants, despite having earlier confirmed to the plaintiff that they were in its possession. The plaintiff responded, noting that it was a matter for independent medical evidence and discovery. The defendant repeated its queries in a Notice for Further and Better Particulars, which was not responded to. The defendant then relied on this failure to provide Further and Better Particulars in explaining its delay in filing its defence.
Both parties issued Motions, the plaintiff seeking Judgment in Default of Defence, and the defendant seeking to dismiss the plaintiff’s claim for disclosing no reasonable cause of action and / or being bound to fail pursuant to Order 19, Rule 28 of the Rules of the Superior Courts 1986.
Judgment of the High Court
In refusing the defendant's application, Judge Bolger noted that the Court's jurisdiction to make an Order to dismiss a claim for disclosing no reasonable cause of action "is one to be exercised sparingly." Interestingly, she noted that the plaintiff's pleadings "around the defective nature of the implant could not be described as extensive or detailed." Nonetheless, Judge Bolger stated that "given the emphasis placed [sic] on the ruptures having occurred within three to four years of being implanted, I do not consider that detracts so significantly from the plaintiff's case that the rupture was a defect, such as to dismiss her proceedings at this point in time for failing to disclose a reasonable cause of action and/or for being bound to fail."
Impact
The defendant has lodged an appeal of this decision which is currently within the Court of Appeal. However, this judgment shows that a plaintiff (despite the judge noting the pleadings not being extensive or detailed) may simply plead that the mere fact of an implant becoming ruptured as sufficient to rely on the Liability for Defective Products Act 1991. Further, the judgment suggests that it would have been more appropriate for the defendant to issue a Motion compelling Replies to the Further and Better Particulars that the plaintiff had not responded to, rather than a Motion to dismiss her claim altogether. It remains to be seen how the Court of Appeal deals with this.
[1] [2025] IEHC 130
