Supreme speed

The Supreme Court has recently re-examined the area of the dismissal of proceedings based on prosecutorial delay and the Primor test in the case of Kirwan v MJ O’Connor Solicitors and Anors. Eoin Pentony puts the boot down 

“Litigation is a spectrum running from meritorious claims to speculative and unmeritorious, but it all has in common the fact that it should be dealt with, if not promptly, then at least without delay which can properly be described as inordinate and inexcusable” – O’Donnell CJ. 

Under order 122, rule 11 of the Rules of the Superior Courts 1986 (RSC), a defendant can bring a motion to dismiss the proceedings for delay, for want of prosecution, where a plaintiff fails for a period of two years to progress matters by continuing to exchange pleadings or taking steps in the proceedings. 

The courts also have an inherent jurisdiction to dismiss proceedings for delay at their own discretion. 

Order 122, rule 11 states: “In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed. In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the court to dismiss the same for want of prosecution, and on the hearing of such application the court may order the cause or matter to be dismissed accordingly [emphasis added] or may make such order and on such terms as to the court may seem just.

"A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule.” 

Primor test 

The seminal case on the issue of dismissing proceedings for delay was Primor plc v Stokes Kennedy Crowley, a Supreme Court decision from 1996. 

In it, the Supreme Court established the three-step test: 

1) The court should consider whether the delay in question is inordinate, 

2) If the delay is inordinate, then the court should consider whether the inordinate delay is inexcusable, 

3) If the delay is both inordinate and inexcusable, the court should then consider whether the balance of justice favours the dismissal of the proceedings. 

The Primor test established that delay, in itself, is not sufficient to dismiss proceedings. A defendant must also establish that the delay is inordinate, inexcusable, and that the balance of justice favours the dismissal of the proceedings. 

In a Gazette article titled ‘The time has come’ (June 2022), the authors reviewed the case law in the area of delay and identified a notable trend emerging in which the judiciary is less tolerant to plaintiffs engaging in delay to progress their claim. 

This trend culminated in 2021, where three decisions indicated that a two-year delay in progressing proceedings is sufficient grounds for bringing an application for delay under order 122, rule 11 of the RSC. 

New direction 

In Kirwan, this year, the events giving rise to the claim occurred in 2005 and 2006, and proceedings were issued on 30 May 2013. 

The plaintiff alleged he delivered a notice for particulars in January 2014 and, in 2018, the defendants issued a motion to strike out the proceedings for want of prosecution under order 122, rule 11. 

The High Court dismissed the proceedings, applying the Primor test, where the delay was inordinate and inexcusable and where the balance of justice favoured the dismissal of the proceedings (in circumstances where the defendant suffered prejudice from the retirement of a solicitor from the practice). 

The High Court decision was appealed to the Court of Appeal, where Power J upheld the decision of the High Court. 

In March 2023, the Supreme Court granted leave to appeal. The appeal was first heard by a panel of five, but then reargued before a panel of seven where “the importance of the issue, and the desirability of seeking an authoritative statement of the circumstances in which a case may be dismissed by a court for want of prosecution” was stressed. 

The problem with Primor 

Four judgments were provided by the Supreme Court from Justices Murray, Hogan, Collins, and Chief Justice O’Donnell. Each of the judgments examined the case law in the area and the Primor test from different angles. 

O’Donnell CJ notes a “degree of convergence from these different starting points and an end point which, as I understand it, is almost identical”. 

Interestingly, O’Donnell CJ notes a degree of overlap between the jurisdictions of delay under order 122, rule 11, to dismiss proceedings as bound to fail as identified in Barry v Buckley and to dismiss proceedings as an abuse of process as identified in O’Domhnaill v Merrick. 

For more on jurisdictional overlap, please see the Gazette article ‘2fast, 2frivolous’ (April 2023). 

O’Donnell CJ highlights the protracted and often highly litigious nature of the Primor case law leading to extensive judgments and appeals, stating “the end result can often be unsatisfactory and protracted proceedings on affidavit with unpredictable results which, particularly when they result in a refusal of the application for dismissal of the proceedings, have the perverse consequences of adding significantly to the delay in getting the proceedings to a hearing”. 

The court’s view of the Primor case law was that the Primor test, ironically, fed into prosecutorial delay itself rather than assisting in reducing delay and getting the substantive matter progressed to a hearing. 

“The most obvious symptom of the difficulty is the fact that Primor claims in the High Court have become quite protracted, involving detailed debates, sometimes contained in extensive affidavits requiring considerable court time, and sometimes extensive judgments.” 

O’Donnell CJ was critical of the Primor test where it: 

1) “Involved a balance of a number of factors giving rise to a necessarily subjective and contestable conclusion resulting in lengthy hearings and appeals, 

2) It proceeded on an assumption that the jurisdiction was an interference with a right of access to court and which required particular weighty justification, 

3) The test did not recognise and therefore did not give sufficient weight to, the fact that lapse of time alone is harmful to the administration of justice and should be a sufficient basis in itself for dismissal of proceedings.” 

Kirwan control 

O’Donnell CJ stated the passage of time itself is paramount to justify the dismissal of a claim and “two years of inactivity is a critical milestone”, citing the test set out in the judgment of Hogan J in Kirwan: 

1) “Until the point is reached where there has been inactivity for two years, a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under the O’Domhnaill v Merrick jurisdiction. 

2) After two years of total inactivity, a claim may be dismissed for want of prosecution. It is likely that a claim will only be dismissed at this point if, in addition to the period of inactivity, a plaintiff can point to some additional prejudice or other factor pointing towards dismissal. If a court does not dismiss the claim, it would be entitled to make strict case-management directions on the basis that non-compliance with such directions would itself justify dismissal. 

3) If there has been four years’ total inactivity, then the claim should be dismissed if it is dependent on oral evidence, so that the defendant is exposed to risk of failing recollections … unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial. 

4) If there has been a cumulative period of complete inactivity for five years, the court should have a generous power to dismiss the case, unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial.” 

In applying the test to the facts of the Kirwan case and inactivity of five years, O’Donnell CJ stated that “there was an onus on the plaintiff to advance these proceedings. He did the opposite. I would dismiss the appeal.” 

Kirwan in action 

In the High Court in July 2025, Mr Justice Barr applied the test in Kirwan to proceedings commenced in 2014 in the matter of Dennis Guilfoyle Developments Limited v Eric Wardrop. 

In dismissing the proceedings, Barr J stated: “The decision in the Kirwan case makes it clear that a period of inactivity of two years is the inflection point beyond which a defendant can apply to have proceedings … struck out for want of prosecution.” 

Barr J further stated: “The test set down at paragraph 26 of the judgment of the Chief Justice in the Kirwan case provides that, if there has been four years’ total inactivity, then the claim should be dismissed if it is dependent on oral evidence so that the defendant is not exposed to the risk of failing recollections and witness reluctance that inevitably accompanies a long effluxion of time, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial.” 

In applying the Kirwan test, Barr J stated: “I am satisfied that, given the passage of time that has elapsed to date and will inevitably elapse until the trial of the action, the defendant will be at a considerable disadvantage in dealing with this issue at the trial of the action.” 

The Supreme Court has moved away from the idea of prosecutorial ‘delay’ and, instead, focuses on prosecutorial ‘inactivity’. 

The court’s motivation behind this shift is to reduce Primor litigation, which, in itself, has led to uncertainty and delay. 

Consequences of Kirwan 

Where a motion to dismiss is issued for prosecutorial inactivity, the outcome of the motion will depend on the length of inactivity by the plaintiff in the proceedings: 

1) Up to two years – where there has been inactivity for up to two years, a claim should only be dismissed if the claim is an abuse of process.

In these circumstances, a claim will not be dismissed for delay or inactivity, but only if the claim comes within the areas as set out in the Gazette article ‘2fast, 2frivolous’ (April 2023). 

2) Two years or more – where there is inactivity for more than two years, an applicant will require inactivity for more than two years and be able to raise some additional prejudice for the claim to be successfully dismissed. If there is no additional prejudice, it is likely the court will direct an ‘Unless Order’, based around strict case management of the substantive proceedings.

If the case-management directions are adhered to, the substantive proceedings will continue to progress to a hearing. However, where the case-management directions are not adhered to, the substantive proceedings will be dismissed as per the terms of the order. 

3) Four years or more – where there is inactivity for four years or more, the claim should be dismissed if it is dependent on oral evidence or if specific prejudice can be demonstrated. As seen in Guilfoyle, where there was delay of four years and the proceedings were dependent on oral evidence, the proceedings were dismissed.

Where the matter is not dependent on oral evidence or there is no specific prejudice demonstrated, it is likely an Unless Order based around case management of the substantive matter will be directed. 

4) Five years – where the inactivity is for five years or more, the court should dismiss the case unless there are ‘exigency circumstances’ of the plaintiff, such as educational, social or economic disadvantage. 

The Supreme Court has taken a new approach in how the courts consider applications under order 122, rule 11, and now seek to ‘save the case’ in an effort to increase court efficiency and make the area of prosecutorial delay less subjective. 

Practitioners will welcome a less subjective approach taken by the courts – and clear timeframes in which to issue motions to dismiss for prosecutorial inactivity. 

Eoin Pentony is a partner in Healy Pentony Solicitors LLP, Dublin 2. 

LOOK IT UP 

CASES

• Barry v Buckley [1981] IR 306
• Dennis Guilfoyle Developments Ltd v Eric Wardrop [2025] IEHC 414
• Kirwan v MJ O’Connor Solicitors and Anors [2025] IESC 21
• O’Domhnaill v Merrick [1984] 1 IR 151
• Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 

LEGISLATION

• Order 122, rule 11 of the Rules of the Superior Courts 1986 

LITERATURE

• ‘The time has come‘ (Law Society Gazette, June 2022, p42)
• ‘2fast, 2frivolous‘ (Law Society Gazette, April 2023, p26)