The High Court has allowed Kildare County Council to replace its defence in a personal injury claim brought by a minor who was bitten by a dog at a property owned by the council and rented by the other defendants.
In a judgment delivered on 13 June 2022, Ms Justice Bolger said the amended defence arose from the same facts as the original and was necessary to determine whether the council owed the plaintiff any duty or other legal obligation. The court allowed the council to deliver the amended defence in the terms exhibited to its application.
The plaintiff’s father, acting as her next friend, brought the claim in April 2018. The council’s original defence, filed in February 2019, denied responsibility for the dog and for its care or management, and disputed that a cause of action had been shown against it.
The proposed replacement defence included a preliminary objection that the claim disclosed no sustainable cause of action against the council. It also specifically denied that the Occupiers’ Liability Act 1995 or the Control of Dogs Act 1986 applied, and disputed that the summons identified a contractual claim against the council.
The plaintiff argued that the new defence introduced issues of controversy and raised the prospect of a motion to dismiss. Her counsel also said a reply would now have to be filed and further engineering evidence might be required. The council maintained that the amendments raised legal consequences from facts already in the case.
Justice Bolger found that the amended defence was more focused but did not materially change the case the plaintiff would have to prove. The court considered the council’s delays in notifying the plaintiff of the proposed amendment and issuing its motion, but said neither was a reason to refuse the application. It also found the council’s explanation—that it decided to amend following senior counsel’s advice after a liability consultation—credible and sufficient.
The judge said the prejudice identified was not of sufficient magnitude at this stage of the litigation. She did not require the council to cover costs the plaintiff might incur because of the amended defence, including the cost of filing a reply.
On the amendment motion itself, the court awarded costs to the plaintiff under the usual rule that the party seeking an amendment bears the costs. The judge said the plaintiff’s consent had not necessarily been unreasonably withheld given the scale of the proposed changes and her concern about a possible dismissal motion. The costs order covers only defending the motion and is to be adjudicated if the parties cannot agree.
The case was listed before the judge on 17 June for any submissions on costs and final orders. The judgment does not determine the underlying dog-bite claim or whether the council is liable.