High Court: Breast implant defects case sufficiently pleaded

About this case:

• Citation:
  [2025] IEHC 130
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Marguerite Bolger explained: “Given the emphasis the plaintiff places 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.”

Barney Quirke SC and Pat Purcell BL appeared for the plaintiff, and Alan Keating SC and Sarah Reid BL appeared for the defendant.

Background

The plaintiff underwent breast augmentation surgery in February 2020, with silicone implants manufactured by the defendant being inserted in both breasts.

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 via a surgery carried out on 24 July 2014. Upon opening the capsule in the left breast, sticky silicone gel and a large flap rupture was found. New implants were inserted.

The plaintiff issued personal injuries proceedings in the Circuit Court in May 2016 in relation to the left implant. In January 2017, the plaintiff experienced a rupture of the new left implant, requiring surgery to remove serosanguinous fluid.

The plaintiff issued a High Court personal injuries summons in August 2019 in relation to the second left implant. Both sets of proceedings were later consolidated.

The plaintiff claimed that following both surgeries, the ruptured implants were sent to the defendant. The defendant confirmed to the plaintiff that it was in possession of three of the plaintiff’s implants, and that it was satisfied that contact with a sharp instrument had caused the ruptures.

The defendant in its notice for particulars 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 opinion to the effect that the implants were defective. The defendant also requested an inspection of the implants, notwithstanding its earlier confirmation that they were in its possession. 

The plaintiff responded, noting that the former was a matter for independent medical evidence and discovery. The defendant to repeated its queries in a notice for further and better particulars, which was not responded to.

The defendant relied upon the plaintiff’s failure to provide further and better particulars to explain the delay in delivering its defence to the plaintiff.  

Both parties issued motions, the plaintiff seeking judgment in default of defence and the defendant seeking to dismiss the plaintiff’s proceedings for disclosing no reasonable cause of action and/or being bound to fail pursuant to inter alia Order 19, rule 28 of the Rules of the Superior Courts 1986 (RSC).

The High Court

Ms Justice Bolger outlined the history of Order 19, rule 28 and its amendment in 2023 by S.I. 456/2023, finding: “Prior to the 2023 amendment, the rule was focused on the pleadings, but the court could consider the underlying merits of a claim pursuant to its inherent jurisdiction. The amendments combine the previous jurisdiction with some adaptation.”

In particular, the judge considered that the amendments did not serve, and were not intended to serve, to “significantly dilute the previous jurisdiction”, including the principle enunciated by the Supreme Court in Keohane v. Hynes [2014] IESC 66 that an application to dismiss as being bound to fail “is not a means for inviting the court to resolve issues on a summary basis… that the jurisdiction is to be sparingly exercised… rather than where the plaintiff’s case is very weak or where it is sought to have an early determination on some point of fact or law”.

Ms Justice Bolger recognised that as per previous case law, she was required to accept the facts as asserted in the plaintiff’s claim, noting: “If those facts would have, if proven, given rise to a cause of action, then ‘the proceedings do disclose a potentially valid claim’.” 

The court agreed that the plaintiff’s pleadings around the defective nature of the implant could not be described as “extensive or detailed”, noting that the plaintiff had conceded in her written submissions that all implants carry a risk of rupture.

Nonetheless, the court was not convinced that this detracted from the plaintiff’s case such as to warrant dismissal of her proceedings where she pleaded that the rupture of the implants, having been in place for only three to four years, was in itself a defect.

The court was disinclined to compel replies to particulars or to order the plaintiff to deliver updated pleadings and/or an amended indorsement of claim in light of her contention that she could not, in any event, do this without inspection, expert evidence and possibly discovery.

Ms Justice Bolger emphasised: “I make no finding validating her views in that regard, but simply point to the difficulties for the plaintiff to put her case about what she says were defects in the subject implants any further than she has done to date from her own knowledge and from her medical records about what her surgeon saw when the subject implants were removed.”

Agreeing that the defendant may be entitled to further particulars of the defects alleged, the judge explained that when that entitled arises is a question of “timing and sequencing”, and that point had yet to arise in the proceedings.

The court explained that where at least three of the implants were in the defendant’s possession, the plaintiff had pleaded sufficiently to require the defendant to file its defence. The court was further convinced that the “high bar” required for the court to exercise its jurisdiction to dismiss pursuant to the RSC, “which is to be used sparingly”, had not been reached.

Conclusion

Accordingly, the High Court refused the defendant’s application to dismiss and found that the plaintiff was entitled to require the defendant to file its defence.

Denise Mulhall v. Allergan Limited [2025] IEHC 130