Irish Supreme Court revises test for dismissal of delayed proceedings

In a significant judgment set to reshape the landscape of Irish dispute resolution, the Supreme Court recently clarified the law surrounding the dismissal of claims for inordinate and inexcusable delay.

Delays in litigation undermine public confidence in the legal system and create challenges for all parties involved. By introducing a revised test for striking out claims stalled by inexcusable delay, the Irish Supreme Court (the Court) has responded to concerns over procedural inertia, offering greater clarity and consistency for Irish practitioners and marking a decisive move towards stricter enforcement of court timelines.

The decision highlights the importance of keeping to proper procedures in Irish court cases and confirms that it is a plaintiff’s duty to make sure the case moves forward. It also marks a shift in how the courts are to now deal with unreasonable delay. 

In this briefing, the Dispute Resolution team in Dublin provides a deep dive into the decision in a case study of Kirwan v Connors & Ors 2025 IESC 21.

The case

In Kirwan v Connors & Ors 2025 IESC 21, the Supreme Court in Ireland revisited the Primor v Stokes Kennedy Crowley 1996 2 IR 459 test for dismissal of claims due to inordinate and inexcusable delay. The Court established a new framework that emphasises the detrimental impact of delaying proceedings on the administration of justice and reduces the previous requirement for defendants to prove specific prejudice to succeed in an application to strike out proceedings for inordinate and inexcusable delay.

Summary of the dispute

The case of Kirwan v Connors & Ors 2025 IESC 21 (the case) relates to a property agreement which was reached on 5 July 2006 between Mr Kirwan and Mr Buttle. Mr Kirwan was the owner of property in Wexford Town and wished to have his property developed. There was a separate loan agreement for €1 million from Mr Buttle to Mr Kirwan.

Due to the downturn in the economy the property transaction did not proceed, however the debt was due to Mr Buttle which was assigned to Filbeck Limited. Mr Kirwan disputed the debt.

Mr Kirwan did not take any steps in the proceedings for a period of more than five years from 2014. On 17 August 2018, the defendants issued a motion under Order 122 Rule 11 of the Rules of the Superior Courts (RSC) and / or the inherent jurisdiction of the Court, seeking the dismissal of the 2013 proceedings for want of prosecution. On 2 September 2019, Justice Meenan delivered a judgment in the High Court granting the application. This High Court decision was upheld by the Court of Appeal.

Conclusions of the Supreme Court in Ireland

The Supreme Court considered whether the inherent jurisdiction of the Courts to dismiss claims for want of prosecution is superseded by Order 122 Rule 11, which provides that an application to dismiss proceedings for want of prosecution can be brought after two years.

• Justice Murray confirmed the Supreme Court's jurisdiction was derived exclusively from Order 122 Rule 11 of the RSC.

• Justice Hogan deliberated that the Court’s inherent jurisdiction to regulate its own procedures was established pursuant to Order 122 Rule 11 along with the Court's inherent jurisdiction to regulate their own procedure.

• Chief Justice O'Donnell decided that despite these contradicting opinions on the root of the Court's jurisdiction that it was undisputed on the key issues:

  • that it would be beneficial for the Rules of the Superior Courts to be revised to provide greater clarity regarding the circumstances in which a case may be struck out for want of prosecution

  • the test in Primor v Stokes Kennedy Crowley had become ineffective

  • the High Court and Circuit Court in Ireland were correct in their judgments in Kirwan v Connors & Ors 2025 IESC 21

• The Supreme Court analysed the impact of defendant inactivity in cases with delayed claims, determining that defendants are not typically required to prompt plaintiffs into action unless there's evidence of acquiescence or encouragement in the delay.

• The Supreme Court decided that significant delay alone should be sufficient grounds for dismissal without additional evidentiary prejudice to the defendant, which contrasts with previous requirements of proving serious prejudice.

The test: rules on delay in Irish litigation

When establishing the new test, the Supreme Court decided that prejudice is no longer an essential condition for dismissal. A simple lack of progress in a case may be sufficient to justify the dismissal of proceedings, with a sliding scale of presumptions triggered by different periods of delay.

Chief Justice O'Donnell set out the new test to succeed in an application to strike out proceedings for inordinate and inexcusable delay:

• for periods of inactivity of less than two years, a case may only be dismissed if it involves an abuse of process or results in prejudice to the defendant

• where inactivity exceeds two years, dismissal for want of prosecution is permitted if the delay has caused some additional prejudice or if there are other factors present which justify dismissal

• after four years of inactivity, there is a presumption that the proceedings should be dismissed where the case relies on oral evidence, except where compelling reasons to the contrary exist. This recognises, as the Supreme Court notes, the risks of prejudice arising from issues such as fading memories or witness unavailability

• where inactivity exceeds five years, the Court has the discretion to dismiss the proceedings and will only permit them to proceed in exceptional cases, for example, where required by the public interest, in circumstances of social or economic disadvantage or where there is serious misconduct by the defendant

The Supreme Court highlighted the necessity for the test to be applied on a case-by-case assessment having regard to all the facts and circumstances. It held that the new test would provide greater consistency of outcome than the Primor v Stokes Kennedy Crowley test has and be more effective in deterring delay on the part of plaintiffs and their advisors.

Key takeaways

The decision underscores the importance of efficiency in Irish legal proceedings. It sends a clear message that the judicial approach to unreasonable delay has changed from an approach that placed excessive weight on the idea that the dismissal of proceedings interfered with the right to access the courts in Ireland, to an approach that is more cognisant of how delay effects a defending party.

How Ogier can help

Ogier in Ireland's Dispute Resolution team are experts in managing litigation and disputes, ensuring efficient and effective progress of proceedings through the Irish legal system. Contact our team via their details below for further information.

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Disclaimer

This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

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