knowledge 12 June 2025 |

Supreme Court Overhauls Rules on Delay in Prosecuting Claims

This decision will be highly relevant to clients and practitioners alike who are managing or involved in claims in which no steps have been taken for a number of years. To date, the courts in Ireland have been willing to indulge delay, or as put by Hogan J, have been “far too accommodating so far as delay in the prosecution of litigation had been concerned”. In Kirwan the Court has set a clear marker that plaintiffs who are slow in progressing proceedings are at risk of strike out.

Kirwan V O’Connor and Ors

The facts of Kirwan relate to a property deal which took place between 2005 and 2006. Following the financial crash, the deal did not proceed as anticipated. Proceedings were issued between the parties, including by the plaintiff against their former solicitors.

The proceedings under consideration by the Supreme Court were commenced on 30 May 2013 and a defence to those proceedings was delivered on 6 December 2013. Following delivery of the defence, the plaintiff took no further steps to advance their claim.

The defendants brought an application to have the plaintiff’s claim struck out for inordinate and inexcusable delay in 2018. The defendants were successful in the High Court and in the Court of Appeal.

The Supreme Court appeal was initially heard by a panel of five judges. The Court then required the case to be reargued before an extended panel of seven judges and invited the Attorney General to make submissions. This indicates the significance the Court ascribed to the issues under consideration.

Judgments of the Supreme Court

Judgments were delivered by O’Donnell CJ, Hogan J, Collins J and Murray J; with O’Donnell CJ and Hogan J representing the majority view of the Court.

Each judgment approached the issue of delay from a different angle. Hogan J considered that the Courts’ jurisdiction was founded upon the Courts’ inherent jurisdiction to regulate their own procedures in addition to Order 122, Rule 11 of the Rules of the Superior Courts, whereas Murray J grounded the Courts’ jurisdiction solely in the latter.

Despite differences of opinion on the source of the Courts’ jurisdiction, O’Donnell CJ considered that the judgments delivered were unanimous on three important matters:

1. That the test for strike out laid down in Primor Plc v Stokes Kennedy Crowley (until now the leading authority on delay) was ineffective;
2. That it would be desirable for the Rules of the Superior Courts to be amended to more closely delineate when a case may be struck out for want of prosecution; and
3. The decisions of the High Court and Court of Appeal in Kirwan were correct.

O’Donnell CJ went on to hold that, since the Primor decision, the courts have a greater appreciation of the harmful effects of inaction in progressing proceedings on the administration of justice. As a result, the Court considered it appropriate to set down a revised test which placed greater emphasis on the passage of time as a factor.

The test, set down by O’Donnell CJ relied upon the judgment of Murray J (and was agreed with by Hogan J), is as follows:

This new test reorients the approach of the courts to consider the amount of time that a party has delayed taking any steps and clearly identifies inactivity for a period of two years as a threshold point. In summary:

• Any asserted delay for a period of less than two years should only result in dismissal where it can be shown that there has been an abuse of process, or the jurisdiction established in O Domhnaill v Merrick (relating to the amount of time that has elapsed since the incident that is the subject of the proceedings) can be invoked.
• Where there has been inactivity for more than two years, a claim is at risk of being dismissed if particular prejudice can be demonstrated. Factors such as the absence of witnesses or evidence, as a result of the elapsed time, may indicate such prejudice. Additionally, a court considering an application to dismiss for delay in this range should also consider the possibility of using the tools at its disposal to ensure the efficient onward progression of the case, e.g., case management or unless orders.
• Inactivity of four years will see a court starting from the assumption that a case should be dismissed if it is dependent on oral evidence. It will be for the plaintiff to persuade the court otherwise.
• Inactivity of five years or more will grant a court a generous power to dismiss, which it should feel free to use unless there are compelling reasons not to do so.

Comment

The decision in Kirwan is likely to bring about significant changes to the way courts will approach the issue of delay. This is a welcome clarification of the law and should result in greater efficiency and predictability for litigants.

The judgments of the Court are unanimous in their view that the historic approach to delay paid insufficient attention to the negative effects of delay on litigants, and placed undue primacy on the notion that dismissal was an interference with the right of access to the court.

Whether the Rules of the Superior Court will be amended, as the Supreme Court has suggested, remains to be seen. However, in the meantime, the revised test set down by the Supreme Court provides useful guidance to parties.

Also contributed to by Soracha Henderson.