The Supreme Court’s recent judgment in Kirwan v. Connors [IESC 21] marks a significant recalibration of the principles governing the dismissal of civil proceedings due to undue delay, fundamentally adjusting the long-standing ‘Primor’ test. This decision aims to inject greater certainty and efficiency into civil litigation, reflecting a stricter judicial stance against prolonged inactivity.

 

Factual Background

The case revolved around Brendan Kirwan’s property development negotiations from 2005-2006, which he claimed involved forgery and professional negligence by his solicitors. These events spawned three separate litigations: the 2011 ‘Creditor’ action, the 2012 ‘Buttle’ action, and the 2013 ‘Combined’ action. In December 2013, the High Court adjourned the initial actions to allow Mr. Kirwan to prosecute his ‘Combined’ action, effectively staying a €1 million judgment against him. However, Mr. Kirwan took no significant steps to advance these proceedings for over four years, until defendants moved to dismiss the case for want of prosecution in 2018. Despite his arguments about unreturned files and unanswered requests for particulars, the High Court and Court of Appeal found his delay inordinate and inexcusable, ruling that the balance of justice favoured dismissal.

 

Judgment

Justice Gerard Hogan, delivering a majority judgment, emphasized that the “Primor principles”, which govern dismissal for delay, have led to inconsistent application and consumed vast judicial time. He concluded that the time had come for an “adjustment”.

Crucially, the Court has adjusted the ‘Primor’ test, collapsing its three prongs into a two-part inquiry by giving renewed force to Order 122, rule 11. This rule states that if there has been no “proceeding” for two years, a defendant can apply for dismissal. The judgment now declares that a period of inactivity exceeding two years is the “principal yardstick” for measuring inordinate delay and will be regarded as *prima facie* inexcusable. This shifts the burden onto the plaintiff to provide “good reasons” or an “appropriate justification or excuse” for such a delay, or to show why the court should stay its hand.

While courts retain discretion to implement “unless orders” and active case management, especially shortly after the two-year period expires, a delay “appreciably longer than two years—such as four years or more—then one may expect that save for special reasons the action will be dismissed for want of prosecution without the necessity to prove prejudice“.

The Court also addressed the conduct of defendants. While defendants are not obliged to proactively progress cases, their complaints about professional reputational damage due to delay will carry little weight if they have not themselves invoked remedies provided by the Rules of the Superior Courts in a timely fashion. In Kirwan’s case, the plaintiff’s extended period of inactivity after being given a final opportunity by the High Court in 2013 was deemed inexcusable.

 

Implications Going Forward

This judgment sends a clear message: the era of “endless indulgence” for dilatory litigants is over. Litigants who allow their cases to lie dormant for more than two years are entering a ‘danger zone’. The onus is now firmly on plaintiffs to actively progress their cases, especially those started late or after having been afforded judicial indulgence.

The ruling emphasizes the judiciary’s commitment to efficient justice, protecting court resources, and safeguarding the administration of justice against abuse. Ultimately, this decision emphasises that while constitutional access to courts is vital, it is not an unqualified right and must be balanced against the defendant’s right to a timely determination and the court’s duty to administer justice fairly and efficiently.

 

For legal guidance and advice regarding professional negligence , please contact Kevin Hegarty, Ellen Dalzell or any member of our team.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.