High Court Applies Kirwan v Connors Reformulated Test In Delay Cases

The Supreme Court recently delivered its judgment in Kirwan v Connors & Ors [2025] IESC 21 (Kirwan), where it reformulated the principles on dismissal of claims for want of prosecution and/or delay as previously set out 30 years ago in Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 459 (Primor) by reference to Order 122 Rule 11 of the Rules of the Superior Courts (RSC).

The judgment is of particular interest for litigants and practitioners managing claims where no steps have been taken in several years.

Background

Kirwan was initially heard by the High Court and subsequently by the Court of Appeal following a property dispute between the plaintiff and his former solicitor. Mr Kirwan (Plaintiff) initiated legal proceedings against Mr O'Connor, one of many defendants (Defendants), over breach of contracts entered into in 2006. The Plaintiff issued proceedings in 2012 and 2013, approximately seven years after the original dispute. However, after that, no meaningful progress was made in the proceedings for another five years.

In 2018, the Defendants applied to have the cases struck out for want of prosecution on the grounds of inordinate and inexcusable delay. The High Court struck out the proceedings based on inordinate and inexcusable delay. The Court of Appeal upheld that decision. In March 2023, the Supreme Court granted the Plaintiff leave to appeal.

The Primor Test and the Supreme Court Judgment

The well-established test for dismissing claims for want of prosecution and/or delay, as set out in Primor, focused on the following questions:

• Is the delay inordinate?
• Is the delay inexcusable/unjustifiable?
• Does the balance of justice favour dismissal of the proceedings?

Although the Supreme Court diverged on specific points, O'Donnell CJ observed that the judgments were unanimous on three points:

1. The Primor test had not achieved the objectives for which it was devised
2. The RSC should be amended to include specific provisions setting out circumstances in which a case may be dismissed for want of prosecution; and
3. The High Court and Court of Appeal were correct in dismissing the proceedings issued by Mr Kirwan.

O'Donnell CJ noted that the law should recognise the importance of the passage of time, which can justify dismissal of a claim. He further stated that two years of inactivity, established in Order 122 Rule 11 of the RSC, is a critical milestone. The Supreme Court proposed a revised Primor test as follows:

1. Less than two years of inactivity – a claim should only be dismissed if it amounts to an abuse of process or if there is prejudice to the defendant to the level required to ground an application under Ó Domhnaill v Merrick [1984] I.R. 151.
2. Two years of inactivity – a claim may be dismissed for want of prosecution. A claim will likely only be dismissed if additional prejudice or other factors point towards dismissal, in addition to the two years of inactivity. If the court does not dismiss the claim, it would be entitled to impose strict case management directions on the basis that non-compliance with such directions would itself justify dismissal.
3. Four years of inactivity – if the case depends on oral evidence, the claim should be dismissed unless the plaintiff shows compelling reasons why the claim can still proceed. The risk of faded memories and witness reluctance is presumed to be high after a long period.
4. Five or more years of inactivity – the court should have a generous power to dismiss the proceedings unless there is a pressing exigency of justice. The Supreme Court noted that an exigency of justice includes exceptional situations in which a plaintiff faced educational, social or economic disadvantage in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated to conclusion, or where there has been serious misconduct by the defendant in the course of the proceedings.

Kirwan Decision Applied:

1. Nowak v Institute of Chartered Accountants in Ireland [2025] IEHC 408

The Kirwan principles were applied in the recent High Court decision of Nowak v Institute of Chartered Accountants in Ireland [2025] IEHC 408 (Nowak). The defendants in that case sought to strike out the matter due to a prolonged delay in progressing the proceedings. The court focused on the eight-and-a-half-year period of inactivity in the proceedings, which fell squarely within the fourth category of cases identified in Kirwan, i.e. inactivity for more than five years. This gave the court a generous power to dismiss the case unless there was a pressing need for justice requiring it to go to trial. Applying Kirwan, the court found no pressing exigency of justice that would justify allowing the case to proceed. Consequently, it ordered that the proceedings be struck out.

1. Dennis Guilfoyle Developments Limited v Wardrop [2025] IEHC 414

In Dennis Guilfoyle Developments Limited v Wardrop [2025] IEHC 414, the High Court also applied the Kirwan principles. The court accepted the submission from counsel on behalf of the defendant that where there has been complete inactivity of the plaintiff for over four years, the defendant is entitled to an order dismissing the proceedings, especially since the proceedings will involve oral evidence.

Barr J. was satisfied that oral evidence would be required at trial regarding a contract concluded in 2006. Given the passage of time, the now 82-year-old defendant would be at a considerable disadvantage in dealing with the case. The court concluded that, in the circumstances, the defendant and his witness would undoubtedly suffer prejudice by having to give oral evidence after four years of inactivity. The plaintiff's claim was therefore struck out.

Conclusion

O'Donnell CJ noted that the Kirwan test is not mechanical and remains a matter for further development. Individual judges may take different views in borderline cases. The reformulation of the Primor principles as a result of Kirwan provides sufficient guidance to resolve most cases without protracted hearings and lengthy appeals. It should provide a structure for more finely balanced claims to focus on the key issues that highlight the constitutional importance of prompt justice and procedural fairness.

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