High Court Clarifies Law On Dismissal Of Cases For Delay

The Supreme Court's landmark decision in Kirwan v Connors [2025] IESC 21 (Kirwan) reformulated how the Irish courts deal with applications to dismiss proceedings for want of prosecution and/or delay.

Two recent High Court judgments, Murphy v Aer Lingus Group plc & Anor [2025] IEHC 589 (Murphy) and Doyle v Commissioner of An Garda Síochána & Ors [2025] IEHC 591 (Doyle), provide helpful guidance and clarification on the application of the Kirwan test in practice.

The Reformulated Test

Before Kirwan, the test for dismissal for want of prosecution was governed by Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459, which focused on whether the delay was inordinate, inexcusable and whether the balance of justice favoured dismissal. In Kirwan, the Supreme Court shifted the focus to the passage of time and introduced a new four-tier test based on defined periods of inactivity. See our previous article here for further information.

Murphy v Aer Lingus Group plc & Anor [2025] IEHC 589

In Murphy, the High Court (Court) granted the defendants' application to dismiss the plaintiff's claim for want of prosecution. The proceedings, which commenced over 12 years previously, concerned a claim by the plaintiff that, in the course of her employment as cabin crew, she sustained injuries when an aircraft "landed heavily" on a flight from Dublin to Birmingham.

Persistent delays occurred throughout the case, with the plaintiff failing to progress proceedings at multiple stages despite reminders from the defendants. In August 2024, the defendants issued a motion to dismiss the claim for want of prosecution.

The Court was conscious that the Chief Justice in Kirwan, cautioned against the application of the test for dismissal in a "mechanical manner", and looked to the particular facts of the case. The Court observed that the defendants had not acquiesced; rather, they had made repeated efforts to prompt the plaintiff into taking action. It held that the cumulative delay for which the plaintiff was exclusively responsible far exceeded seven years and therefore, fell within the fourth category of the Kirwan test. In such circumstances, the Court may dismiss the proceedings unless it is satisfied that there is a pressing exigency of justice requiring the case to continue. The Court considered the three broad categories of exceptional situations set out by O'Donnell CJ in Kirwan, where such an exigency of justice requires the case to be permitted to proceed to trial. Noting that these categories are intended as guidance and not an exhaustive list, the Court held that no such exigency of justice existed in this case.

While the fourth category of the reformulated test does not require the defendants to demonstrate proof of prejudice, the Court observed that the potential for prejudice in this case was obvious. It found that a trial judge would be expected to make findings of fact based on witness recollection of events that occurred over 14 years ago. As the trial would involve oral evidence from a range of parties, the extensive passage of time alone was sufficient to undermine the integrity of the trial process. The Court concluded that the only just outcome was to grant the relief sought by the defendants and dismiss the proceedings.

Doyle v Commissioner of An Garda Síochána & Ors [2025] IEHC 591

In Doyle, the Court dismissed proceedings brought by a former Garda who claimed that he had been unlawfully dismissed in 1998. The chronology revealed extensive delay. Proceedings commenced in 2003, and the defendant entered an appearance in February 2003. However, a Statement of Claim was not delivered until July 2018, over 15 years later. The defendants issued their Notice for Particulars in December 2018, to which replies were not furnished until January 2021, almost 25 months later.

The judgment is notable for addressing two material questions on how the Kirwan test operates in practice. The Court considered:

• Whether a two-year period of inactivity must immediately precede the application to dismiss for want of prosecution, or whether it is sufficient that there has been a two-year period of inactivity at some point during the proceedings? and
• Whether the period of four or five years of inactivity, applicable in categories three and four of Kirwan, must immediately precede the application to dismiss?

Clarification of periods of inactivity

In relation to the first question, applying the majority judgments in Kirwan, the Court discussed whether there must be a two-year period of inactivity immediately before any application to dismiss for delay. While the two-year rule is described as a "critical milestone" in Kirwan, it was never expressly stated by the majority that the two-year period is a precondition in the same manner as it is under Order 122, Rule 11 of the Rules of the Superior Courts. The Court observed that such a rigid rule would be inconsistent with its inherent jurisdiction to dismiss proceedings for delay.

In relation to the second question, the Court held that there does not have to be a solid period of four or five years of total inactivity for a case to fall within the third or fourth category of the Kirwan test. Noting the Supreme Court's use of the words "cumulative period" in Kirwan, the Court stated that it must have regard to separate periods of inactivity, provided there was a solid block of two years of inactivity at some stage over the course of the proceedings. Therefore, it follows that it is not necessary for a four or five-year period of inactivity to precede the application to dismiss.

Ultimately, the Court held that the proceedings should be dismissed. It rejected arguments that engagement with external processes excused the delay. The plaintiff failed to establish compelling reasons or pressing exigencies of justice requiring the case be permitted to continue to trial. The Court was satisfied that the delay was inexcusable and inordinate.

Conclusion

The reformulated test in Kirwan has brought clarity and structure to applications for dismissal on grounds of delay, placing the passage of time at the centre of a Court's analysis. With regard to the cases mentioned above,

• Murphy demonstrates that prolonged inactivity will likely lead to dismissal unless an exceptional exigency of justice exists.
• Doyle shows that although the Court did not have to answer this question based on the facts of the case before it, it opined that the majority judgments in Kirwan appeared to impose a general rule requiring two years of inactivity immediately before an application to dismiss, however this rule is not absolute. There may be exceptional circumstances in which a shorter period may be sufficient to engage the jurisdiction and, when taken with the overall progress of the case, to warrant an order dismissing the proceedings. The Court also clarified that a continuous four- or five-year block of inactivity is not essential for a case to fall within the third and fourth categories of Kirwan; and cumulative periods of delay will suffice.

These decisions provide welcome guidance on the application of the Kirwan principles and reinforce the critical importance of proactive case management.

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