Pysz v Department of Health - Covid Discrimination Claim

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  Pysz v Department of Health (Approved) [2026] IEHC 187 (24 March 2026)

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APPROVED? ????????????????????????????????????????????????????????????????????????????????????????? [2026] IEHC 187???????

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THE HIGH COURT

Record No: 2024/3380 P

Between:

TOMASZ PYSZ

Plaintiff

-AND-

DEPARTMENT OF HEALTH

Defendant

JUDGMENT of Mr Justice Rory Mulcahy delivered on 24 March 2026

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Introduction

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1. The plaintiff in these proceedings claims that he was discriminated against by the defendant in its application of certain Covid regulations. In particular, he claims that he was discriminated against by being forced by the defendant to go through an " invasive medical procedure ". This judgment concerns the defendant's motion to strike out that claim as being bound to fail.

2. The basis of the plaintiff's claim is not straightforward to discern from his papers. Although served with the motion and clearly on notice of the hearing date, the plaintiff, a lay litigant, did not appear at the hearing of the motion. It appears that his complaint is that he permanently resides in Ireland but was required to travel back to Poland for medical treatment during 2020, 2021 and 2022 at a time when Covid restrictions were in place. It seems that he did not, at least initially, get vaccinated against Covid. In those circumstances, he was required to provide evidence of a recent RT-PCR test before being permitted re-entry to the country. This, according to the plaintiff, amounted to some form of discrimination.

3. The plaintiff brought a claim to the Workplace Relations Commission (" the WRC ") under section 21 of the Equal Status Act 2000, as amended (" the 2000 Act "). A hearing took place on 19 October 2022. In a decision dated 10 November 2022, the claim was rejected on the basis that the plaintiff had not made out a prima facie case. In short, the WRC concluded that he had not established a prima facie case on the grounds of a recognised discrimination ground under the 2000 Act. The WRC rejected the plaintiff's contention that not taking a vaccine was a disability within the meaning of the 2000 Act. The adjudication officer noted that the period during which the plaintiff claimed to have been discriminated was between July and November 2021 when, it appears, he was vaccinated against Covid because of the expense of having to pay for a RT-PCR test every time he travelled.

4. An appeal lies from a decision of the WRC, under section 21 of the 2000 Act, to the Circuit Court. In his statement of claim, the plaintiff claims that he did lodge an appeal to the Circuit Court, first by registered post, and then by email, but that these were " conveniently lost." It appears that he has issued proceedings against the Court Service regarding this lost appeal.

5. In July 2024 he issued the within proceedings. He filed an affidavit in February 2025 exhibiting certain documents and on 17 October 2025 he delivered a statement of claim which is in the same terms as that affidavit.

6. The defendant delivered a defence dated 18 December 2025 in which it raised a preliminary objection that the plaintiff's claim was res judicata and therefore bound to fail. The defendant then issued the motion the subject of this judgment seeking to strike out the plaintiff's claim on that basis.

The plaintiff's claim

7. The plenary summons gives little indication of the nature of the plaintiff's claim. In it the plaintiff pleads that his claim is discrimination, violation of EU directives, violation of the Constitution, violation of the Nuremberg Code (1947), violation of civil liberties, false imprisonment, violation of the European Declaration of Human Rights and of the Universal Declaration of Human Rights. He seeks compensation in the sum of ?10 million plus ?1 million to be paid to a charity of his choosing.

8. His statement of claim is a little more enlightening. It is not in a form consistent with the Rules and, remarkably, does not include any claim for relief. It is clear from the correspondence exhibited that it is simply the plaintiff's affidavit, with a new heading, 'Statement of Claims', and the jurat removed.

9. It refers to the fact that the plaintiff travelled to Poland for medical treatment on a number of occasions between 2020 and 2022 and that upon arrival back to his country of residence (Ireland) " each time the department of health discriminated against " him, treating him worse only because he decided not to take part in " a medical experiment on a global scale ". He pleads, however, that his argument is not with the effectiveness of the Covid vaccine, but with the discriminatory actions of the defendant, forcing him to " an invasive medical procedure " and " on a number of occasions false imprisonment."

10. In addition to his complaints in relation to discrimination, he refers to the requirements of the Covid regulations as " clearly violation of the Nuremberg code as well as the Irish constitution." There is also a reference to a purported loophole in Irish legislation which allows some forms of discrimination. There is a claim that this renders the legislation invalid as going directly against the Constitution as well as superior laws of the European Union that forbids all forms of discrimination. No legislation is identified, nor any provisions of the Constitution or EU law.

11. It is noted in the decision of the WRC that two statutory instruments were referenced during the hearing, SI 135 of 2021, Health Act 1947 (Section 31A - Temporary Restrictions) (Covid-19) (Restrictions upon Travel to the State from Certain States) (No. 5) Regulations 2021 and SI 367 of 2021, Health Act 1947 (Section 31A - Temporary Restrictions) (Covid-19) (Restrictions upon Travel to the State from Certain States) (No. 5) (Amendment) (No. 2) Regulations 2021.

12. Under SI 135 of 2021, all persons other than certain categories who were exempted (e.g. pilots, drivers of heavy goods vehicles) were required to present themselves to an authorised officer when entering the State at a port or airport and provide a relevant RT-PCR test result, which showed that the test had been taken by the person within the last 72 hours and that, at that time, Covid was not detected in that person.

13. Under SI 367 of 2021, introduced in July 2021, alternatives to providing a test result were set out. A person could instead provide a vaccination certificate or a certificate of recovery when entering the state from a non-designated state. If they did not have one of these, the requirement for a relevant RT-PCR test result remained.

14. Both statutory instruments were made pursuant to the powers set out in the Health Act 1947, as amended by the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020. Section 10 of the 2020 Act inserted a new section 31A in the 1947 Act, which provides, inter alia, ** as follows:

31A. ?(1) The Minister may, having regard to the immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19 and to the matters specified in subsection (2), make regulations for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19 (including the spread outside the State) or where otherwise necessary, to deal with public health risks arising from the spread of Covid-19 and, without prejudice to the generality of the foregoing, such regulations may, in particular, provide for all or any of the following:

(a) restrictions to be imposed upon travel to or from the State...

15. It appears, therefore, that the plaintiff claims he was discriminated against by being required to provide a RT-PCR test result when entering the State when others, who had a vaccination certificate, were not so required.

16. The statement of claim also makes various bald assertions regarding the Covid test being unreliable, and the measures in the regulations having zero effect on the possible spread of the virus. The references to false imprisonment appear to relate to his later plea that another illegal measure taken by the defendant was the requirement for periods of self-isolation. This seems to be a reference to the requirement to quarantine for fourteen days upon arrival in the State if one of the other options (vaccination certificate, valid RT-PCR test, certificate of recovery) were not availed of. The plaintiff does not appear to contend that he was required to quarantine, so his complaint that he was subjected to false imprisonment is a little difficult to understand.

17. Importantly for the purpose of this motion, in addition to delivering a statement of claim, the plaintiff also delivered a notice pursuant to Order 60, rule 1 of the Rules (" the Order 60 notice ") dated 9 February 2026. Such a notice must be served on the Attorney General where the constitutionality of any law is being questioned in any proceedings. It is not clear whether the plaintiff served the notice on the Attorney General.

18. It appears from that notice that the plaintiff wishes to challenge the constitutionality of the requirements contained in the above-mentioned regulations, although no specific regulation is cited. His Order 60 Notice otherwise has the appearance of a more orthodox pleading. In it the plaintiff identifies Articles 40.1, 40.3, 40.4, and 43 as the provisions of the Constitution which he claims have been infringed, as well as separation of powers. He also sets out that his grounds of challenge include that the impugned measures were arbitrary, disproportionate, and excessive and constituted " coercion in respect of medical decision-making."

19. There are, accordingly, potentially two strands to the plaintiff's claim. The first is his claim under the 2000 Act that he has been discriminated against by being required to produce a RT-PCR test when travelling to Ireland. There is also a possible claim that the obligations imposed by the Covid regulations identified in his WRC claim are unconstitutional.

Motion to strike out

?

20. The defendant issued a motion on 13 January 2026 seeking to strike out the plaintiff's claim on the basis that the proceedings were bound to fail, were an abuse of process and had no reasonable chance of succeeding. In brief, the defendant contends that the issues in the proceedings have already been finally determined in the WRC claim and therefore are bound to fail or constitute an abuse of process.

21. In his affidavit grounding the application, David Smith, Chief Operations Officer with the defendant, exhibits certain correspondence exchanged with the plaintiff following the commencement of the proceedings. In a letter dated 12 November 2025, sent by email, the Chief State Solicitor's Office wrote to the plaintiff noting that his claim appeared to be " an attempt to re-visit [his] claim that was previously determined by the WRC ". The letter stated that the proceedings were, therefore, bound to fail and the plaintiff was invited to withdraw his claim.

22. The plaintiff replied by email of the same date stating that he would not withdraw his claim and confirming that " this case is a continuation of the WRC complaint along with new findings I could not and was not allowed to submit when at WRC. "

23. In a subsequent email from the plaintiff dated 25 December 2025, following receipt of the defendant's defence, he appeared to contradict the above, stating that his " lawsuit is not based on the appeal of the WRC however, it is most deffintely partially based on the discrminatory, racist and hatefull decision [sic] ". He quoted the other grounds referenced in his plenary summons.

24. At the hearing of the motion, and in its written submissions, the defendant focussed on the contention that the proceedings were barred by the doctrine of res judicata.

Applicable Principles

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25. Order 19, rule 28 has been amended by SI 456/2023. It now provides:

28. (1) The Court may, on an application by motion on notice, strike out any claim or part of a claim which:

(i) discloses no reasonable cause of action, or

(ii) amounts to an abuse of the process of the Court, or

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.

**

26. As noted by Simons J in O'Malley v National Standards Authority of Ireland [2024] IEHC 500:

"The amendment to Order 19, rule 28 has the practical effect of eroding the previous distinction between the jurisdiction to strike out and/or to dismiss proceedings pursuant to (i) Order 19 of the Rules of the Superior Courts, and (ii) the court's inherent jurisdiction."

**

27. In Beades v KBC Mortgage Finance Company [2025] IEHC 363, the High Court (Dignam J) observed as follows in relation to the jurisdiction to strike out proceedings:

" 53. The principles governing the exercise of the Court's jurisdiction to strike out a claim under the previous version of Order 19 Rule 28 or under the Court's inherent jurisdiction are well-established (see, for example, Barry v Buckley [1981] IR 306, Salthill Properties Limited v Royal Bank of Scotland plc [2009] IEHC 207, Lopes v Minister for Justice, Equality and Law Reform [2014] IESC 21, Keohane v Hynes [2014] IESC 66, Clarington Developments Limited v HCC International Insurance Company plc [2019] IEHC 630, Kearney v Bank of Scotland [2020] IECA 92). The principles, particularly in relation to the exercise of the Court's inherent jurisdiction, have recently been stated by the Court of Appeal in Scotchstone Capital Fund Ltd & anor v Ireland & anor [2022] IECA 23, and in McAndrew v Launceston Property Finance DAC & anor [2023] IECA 43.

**

54. In summary, the jurisdiction, whether under Order 19 Rule 28 or the Court's inherent jurisdiction, is subject to a number of overarching principles: first, the default position is that proceedings should go to trial and that a person should only be deprived of a trial when it is clear that there is no real risk of injustice; second, it is a jurisdiction to be exercised sparingly, given that it relates to the constitutional right of access to the courts; third, the onus is on the moving party to establish that the pleadings do not disclose a reasonable cause of action or that the case is frivolous or vexatious or bound to fail or that it is an abuse of process, and the threshold to be met is a high one; fourth, the Court must take the plaintiff's claim at its highwater mark; fifth, the Court must be satisfied not just that the plaintiff will not succeed but cannot succeed; and sixth, the Court must be satisfied that the plaintiff's case would not be improved by an appropriate amendment to the pleadings or through the utilisation of pre-trial procedures such as discovery or by the evidence at trial. "

28. In relation to the last of those propositions, that a claim should not be dismissed if it can be "saved" by an amendment, the High Court (McDonald J) observed as follows in Darragh v Darragh [2018] IEHC 427 (at ?36(g)):

"... I would add that, in my view, if this principle is to be applied in any particular case, an intimation would have to be given by the plaintiff or his legal representatives that the plaintiff proposes to amend the claim. "

29. In Keary v Property Registration Authority of Ireland [2022] IEHC 28, Butler J indicated that, particularly where proceedings involve lay litigants, it might be necessary to look beyond the pleaded case in a motion such as this (at ?35):

" Further, although the jurisprudence suggests on the one hand that regard should not be had to anything but the pleadings themselves, it also makes it clear that pleadings should not be struck out if they are capable of being amended so as to disclose a reasonable cause of action. In looking at this specific issue, regard may be had to the other pleadings in the case and to the affidavits in the motion to see whether these disclose as-yet-unpleaded grounds on which a valid cause of action might be based. This is particularly pertinent in the case of litigants-in-person who will frequently lack the legal skill necessary to plead a case well. The court must be careful to differentiate between a bad case simpliciter and a case that is merely badly pleaded. "

30. In Mullaney v Ireland [2023] IECA 195, the Court of Appeal (Costello J) noted that it is impermissible to bring proceedings for the purpose of challenging final orders made in earlier proceedings (at para. 8):

"It is an abuse of process to bring proceedings whose purpose and effect is to launch impermissible collateral attacks on valid, final, un-appealed Orders of the High Court."

**

31. In Murphy v Canada Life Assurance Ireland Ltd [2016] IECA 128, the Court of Appeal (Hogan J) considered the applicability of the doctrine of res judicata to administrative decisions:

"8. In my view, it is perfectly clear, both as a matter of principle, statute and authority that, broadly speaking, a claimant cannot advance a complaint to the FSO and then, should that claim prove unsuccessful, re-litigate the same matter before the High Court under the guise of separate proceedings. There is a clear public interest in the finality of litigation, coupled with a requirement that a litigant should advance the entirety of a claim and not endeavour to litigate matters in a piecemeal basis. The potential for the abuse of the litigious process by repeated applications is manifest.

**

9. These principles are reflected in the doctrine of res judicata , so that a matter which has been finally judicially decided cannot generally be re-opened. The principles of res judicata serves not only to protect these important public interests, but also to safeguard the legitimate interests of litigants to ensure that they are not harassed by the unnecessarily burdensome litigant who endeavours to re-open matters which have already been judicially determined.

**

10. The doctrine does not apply simply to judicial findings, but also to administrative determinations which, in the nature of things, are final."

**

32. In order to ground a plea of res judicata, a decision must be a decision on the merits. In Moffitt v ACC [2007] IEHC 245, [2008] 1 ILRM 416, an application to dismiss proceedings, the High Court (Clarke J, as he then was) noted the following:

"3.2 The principal basis advanced on behalf of ACC for suggesting that these proceedings are bound to fail is that the same issues have already been determined. In that context it is important to identify the scope of the doctrine of res judicata . It is well settled that in order for a plea of res judicata to succeed, the judgment upon which it is founded must be a final and conclusive judgment on the merits."

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Discussion

33. The plaintiff's claim that he has been discriminated against is clearly bound to fail. It has been rejected by the WRC. The WRC's conclusion that he had not made out a prima facie case, was a decision "on the merits", to use the terminology in Moffitt. It was not rejected on a technicality, but rather on the basis that there was no discrimination within the meaning of the 2000 Act disclosed in his claim. The appropriate remedy if the plaintiff was dissatisfied with the outcome of those proceedings was to appeal to the Circuit Court.

34. The plaintiff pleads that he did appeal to the Circuit Court but that that appeal was lost. He did not exhibit his purported appeal in the affidavit sworn in May 2025, though he does exhibit an email sent on 9 July 2023 to an individual in the Dublin District and Circuit Civil Office in ?ras U? Dh?laigh, Four Courts, which refers to the lost appeal. Any question regarding a lost appeal is a matter for the Circuit Court and it has been indicated that separate proceedings have issued in relation to that matter.

35. However, it is apparent that the plaintiff did not properly issue any appeal. His pleadings and correspondence refer to having appealed by emailing his appeal and sending it by registered post. It is not possible to issue an appeal in the Circuit Court by either of these methods. As set out in Order 57A of the Rules of the Circuit Court, an appeal against a decision of the WRC is commenced by origination notice of motion. That motion must be issued in the relevant Circuit Court office and cannot be commenced by simply emailing or posting it in.

36. Accordingly, the plaintiff did not appeal the decision of the WRC in accordance with the requirements of the Circuit Court and thus the decision of the WRC must be regarded as final. In those circumstances, as made clear by the Court of Appeal in the Murphy v Canada Life decision referred to above, any attempt to re-litigate issues finally determined in those proceedings is barred by the doctrine of res judicata and is, accordingly, bound to fail.

37. Although not strictly necessary to do so, I should add that the WRC's conclusion that there had been no discrimination under the 2000 Act was plainly correct. Disability is defined in the 2000 Act as meaning:

( a ) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

( b ) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

( c ) the malfunction, malformation or disfigurement of a part of a person's body,

( d ) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

( e ) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour...

38. As appears from the WRC decision, the plaintiff indicated that he was advised not to get vaccinated but provided no evidence to support that. He did, in fact, get vaccinated in November 2021. On no analysis could an election not to take a vaccine amount to a disability under the 2000 Act. Even if the taking of the vaccine had been medically contra-indicated, this would not have constituted a disability for the purpose of the 2000 Act. No other basis for claiming discrimination within the meaning of the 2000 Act was or has been identified. His discrimination claim was correctly rejected on the merits and would, even if not barred by the doctrine of res judicata, be bound to fail in these proceedings.

39. I should add that there must be some doubt regarding whether a person can pursue a claim for discrimination in court proceedings, there being a statutory remedy available, a complaint to the WRC (see, for instance, Power v HSE [2019] IEHC 462). Since the discrimination claim is, in any event, bound to fail, it is not necessary to address this issue further save to note that this judgment should not be understood as suggesting that if the discrimination claim were not otherwise bound to fail, it would have been permissible to pursue it in plenary proceedings.

40. Insofar as the plenary summons and statement of claim read together purport to identify other causes of action, with one exception, no claim with a reasonable prospect of success is disclosed. No basis for suggesting that the EU Directives pleaded in the plenary summons give rise to a cause of action is identified. There is no basis for suggesting a breach of the Nuremberg Code which, in any event, does not form part of domestic law, nor do the European Declaration of Human Rights or the Universal Declaration of Human Rights. The claim of violation of civil liberties is impermissibly vague and does not disclose any cause of action known in law.

41. Slightly different considerations arise in relation to any constitutional claim that the plaintiff seeks to advance. The WRC did not have jurisdiction to consider any such claim, and it could not, therefore, be barred by the doctrine of res judicata (or, for that matter, the rule in Henderson v Henderson).

42. His claim in the plenary summons for " violations of the Irish constitution " is also impermissibly vague, and it is clear that it is a claim which is bound to fail on the basis of the pleadings to date. No statutory provisions are identified in the statement of claim, still less any provision of the Constitution with which they are said to conflict. No remedy or relief is sought. The plaintiff has not expressly indicated any intention to amend his claim.

43. However, there are some suggestions in the statement of claim of a constitutional claim. Importantly, the plaintiff delivered an Order 60 notice following the bringing of this motion. The notice identifies specific legislative powers (without identifying the legislative provisions), the constitutional provisions with which the powers are said to be in conflict and the grounds upon which he purports to rely in claiming that the legislative powers are unconstitutional.

44. On the most generous view possible, his Order 60 notice could be regarded as an indication of an intention to pursue arguments other than those pleaded in his statement of claim and, accordingly, an intention to amend. Even taking that generous view, I have grave reservations about whether the plaintiff has identified any cause of action which is not bound to fail.

45. Insofar as the plaintiff wishes to challenge the regulations which imposed the requirement for a RT-PCR test, those regulations were made in accordance with powers conferred by section 31A of the Health Act 1947, as amended. There is no suggestion in anything provided by the plaintiff that the regulations were ultra vires the Act. A challenge to section 31A has already been dismissed by the High Court and Court of Appeal in O'Doherty and Watters v Minister for Health, Ireland, and the Attorney General [2020] IEHC 209 and [2020] IECA 59 on the basis that it did not disclose any arguable grounds.

46. In the Court of Appeal, Birmingham P observed as follows:

"... I acknowledge without equivocation that the decisions taken have been far-reaching ones that have impacted very significantly indeed on individuals and businesses. I do not doubt, as I have previously stated, that there are those who believe, just as the applicants do, that the decisions have gone too far and are unnecessary and disproportionate, but there are others that believe that the government, in particular, is to be criticised for not going far enough, for not locking down quickly enough and for easing restrictions prematurely. However, the fact that different views may exist, and the fact that there is room for differences of opinion, does not provide a basis for an intervention by the courts. I do not exclude the possibility that it might be possible to formulate a serious challenge to one or other of the measures taken on some constitutional grounds, but what I am absolutely clear about is that the applicants have not done that. Both in this court and in the High Court, the applicants have made assertions in trenchant terms. I do not doubt that the views expressed are sincerely held, implausible, and indeed, eccentric, as many of them might appear to be, but the fact that individual citizens disagree with government policy and legislation enacted by the Oireachtas, does not provide a basis for a constitutional challenge. Bald assertions do not morph into anything more than that merely because the assertions are couched in strong, or indeed, extravagant language. One cannot lose sight of the fact that establishing that there is a rational basis for adopting a fundamentally different policy approach would not assist the applicants, even if they could achieve that; they must go much further than that and establish that the measures taken were impermissible and outside the range of responses available to the executive and the legislature. "

47. Similarly, the plaintiff here has in no way substantiated a claim that the measures contained in the regulations referred to above were outside the range of responses available to the executive and the legislature, still less identified any basis for asserting that it was impermissible to make a distinction between those who had taken a relevant RT-PCR test result, those who had a valid certificate of recovery and those who had a valid vaccination certificate.

48. Section 31A was also the subject of the challenge in Ring v Minister for Health [2024] IEHC 323. The plaintiffs were prosecuted for failing to comply with restrictions imposed by regulations made pursuant to section 31A to stop the spread of Covid. The claim, in effect, that regulations imposing criminal liability were outside the scope contemplated in the legislation and, therefore, contrary to Article 15.2.1 of the Constitution, was also rejected.

**

49. Mulreaney v DPP [2024] IESC 50 is a decision of the Supreme Court which concerned the mandatory quarantine measures for persons travelling from designated states introduced in response to Covid. However, the judgment of the Supreme Court (Donnelly J) makes clear that it was not concerned with the constitutionality of those measures, but rather whether the mechanism for designating states under the regulations (at ?124):

**

" This appeal does not raise any issue about the constitutionality of the system of mandatory quarantine in designated facilities; it only concerns the procedural mechanism by which the UAE was so designated. Furthermore, these appeals do not raise any issue about the adequacy of safeguards surrounding the right to liberty that were provided during the quarantine period; it raises the discrete issue of whether the Designated Appeals Officer is administering justice in carrying out requests for review by those in quarantine. "

50. The Court of Appeal judgment in O'Doherty acknowledged, in the passage cited above, that the possibility of a serious challenge to the constitutionality of measures imposed in response to Covid could not be excluded. Moreover, those proceedings were judicial review proceedings, and the court was dealing with an application for leave, intended to act as a filtering mechanism. In such applications, as Meenan J put it in the High Court (at ?29):

" The burden is on the applicant to depose to such facts in his/her grounding affidavit which, if proven, could make an arguable case in law that has a prospect of success. "

51. Although the plaintiff swore an affidavit earlier in these proceedings, an application to strike out pursuant to Order 19, rule 28(1) is not an application for leave to apply for judicial review. In this application, the burden is on the defendant to show that there is no cause of action capable of succeeding, even if the plaintiff were to amend his claim.

52. In light of the decisions in Ring and O'Doherty, ** it is far from clear that this plaintiff can advance any " serious challenge," as Birmingham P put it, to any of the measures enacted in response to Covid. Certainly, he has no standing to challenge measures by which he was not personally affected. Moreover, section 31A ceased to have effect on 31 March 2022 and it may be that any claim is now moot (see, in this regard, O'Mahony v Minister for Health [2025] IEHC 45). However, in light of the high threshold which must be met in an application to strike out, and giving the plaintiff the benefit of the doubt that his Order 60 Notice can be regarded as evincing an intention to amend his pleadings, I cannot, at this point, rule out the possibility that an amendment may disclose a cause of action which is at least stateable.

53. The defendant has succeeded, at this juncture, in establishing that the entirety of the plaintiff's case other than a possible constitutional claim, adverted to in the statement of claim and elaborated on in the Order 60 notice, is bound to fail. In circumstances where there has been no express statement of an intention to amend and, more importantly, no indication of an amendment which might disclose a stateable cause of action arising out of the existing claim, I propose to afford the plaintiff a very limited opportunity to seek to deliver a draft amended statement of claim should he wish so to do. Any such draft must comply with the Rules in relation to pleading and be confined to the constitutional claim identified in the Order 60 notice.

54. I will therefore make an order striking out the plaintiff's claim pursuant to Order 19, rule 28(1) of the Rules on the basis that it is bound to fail and discloses no reasonable cause of action. However, I will place a stay on that order for a period of four weeks. If the plaintiff delivers and files a draft amended statement of claim within three weeks of the date of this judgment which complies with the requirements set out above, the stay will be continued pending further order. If no draft amended statement of claim is delivered and filed within the time specified, the stay will lapse, and the claim will be struck out.

55.

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I will list the matter for mention before me on 30 April 2026 at 10.30 am to address any issues arising.

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