A Sea Change for Delay in the Irish Courts?

A Recent Supreme Court Decision on Want of Prosecution in Litigation. A Sea Change for Delay in the Irish Courts, or Merely More of the Same?

Mark Healy and Trevor Hosey examine the changes.

The Supreme Court’s decision in Kirwan v Connors & Ors (“K-v-C”) has significantly revised the long-established Primor [1] test for dismissing claims for want of prosecution. The Court placed renewed emphasis on the importance of elapsed time and aligned its reasoning with Order 122, Rule 11 of the Rules of the Superior Courts.

Key Changes to the Primor Test

In delivering the judgment, Chief Justice Donal O’Donnell (joined by Murray J and Hogan J) outlined a restructured framework for assessing delays in prosecuting claims:

• Inactivity of Less Than Two Years

Dismissal will only be appropriate where the proceedings amount to an abuse of process, or if the defendant can demonstrate prejudice to the extent that a fair trial, as defined in O’Domhnaill v Merrick [2], would be impossible.

• Inactivity of Two Years

While not automatically resulting in dismissal, this duration of inactivity entitles the court to consider such a step, particularly if other factors, such as prejudice, are present. Courts may also issue strict case management orders, with non-compliance potentially justifying dismissal.

• Inactivity of Four Years

In cases that depend on oral testimony, a four-year delay will generally warrant dismissal unless the plaintiff can provide compelling justification for the case to proceed. The burden rests with the plaintiff to demonstrate that the proceedings should be allowed to continue.

• Inactivity Exceeding Five Years

At this stage, the courts have broad discretion to dismiss the claim, save where exceptional circumstances exist—such as significant disadvantage to the plaintiff or serious misconduct by the defendant—which would necessitate a trial.

Notable Considerations

• The Role of Defendants

The Supreme Court clarified that defendants are under no obligation to actively advance proceedings and should not be penalised for adopting a reactive rather than proactive approach.

• Judicial Discretion

While the revised test introduces greater structure, it is not inflexible. Judges retain the discretion to consider the individual circumstances of each case.

• Case Management Emphasis

Murray J stressed the growing importance of active case management, suggesting that structured judicial oversight may prove more effective than rigid time-based thresholds in promoting timely resolution.

Commentary

While the decision’s clarity around temporal benchmarks for delay is welcome, questions remain as to whether K-v-C goes far enough in addressing the persistent issue of plaintiffs failing to actively prosecute their claims. In some respects, the judgment tacitly tolerates up to four years of inactivity, absent a clear showing of severe prejudice by the defendant.

This may be cold comfort for certain defendants, for whom prolonged litigation can have significant and damaging consequences (such as increased insurance premiums, reputational damage and/or financial strain) particularly for companies and professionals. Against this backdrop, one might view the decision as a step towards a more structured litigation environment, with early-stage, mandatory case management playing a pivotal role.

In conclusion, K-v-C represents an evolutionary rather than revolutionary shift in the Irish courts’ approach to delay in litigation.