Supreme Court Clarifies Delay Rules in Irish Litigation

In a recent decision, the Supreme Court clarified the approach that the judiciary will take in future when considering applications to dismiss proceedings for inordinate and inexcusable delay. The ruling handed down in the Kirwan v Connors & Ors 2025 IESC 21 revises the previous test for striking out claims for delay which had been set down in the matter of Primor v Stokes Kennedy Crowley 1996 2 IR 459. The previoustest being commonly referred to as the Primor Test. Under the Primor Test, for a Defendant to have a claim dismissed for want of prosecution, they had to prove three distinct elements:

1. There had been inordinate delay on the part of the Plaintiff;
2. The delay had been inexcusable;
3. The balance of justice was against the case being allowed to proceed.

In Kirwan v O’Connor & Ors, the Plaintiff did not take any steps to prosecute his claim for over 5 years and, in August 2018, the defendants issued a Motion seeking to strike out the proceedings for inordinate delay in accordance with Order 122 Rule 11 of the Rules of the Superior Couts and/or the inherent jurisdiction of the Court. The Defendants application was granted and the decision was upheld in the Court of Appeal, with the Plaintiff then appealing the matter to the Supreme Court.

Chief Justice O’Donnell decided that the Supreme Court justices were unanimous on three points:

• that the Rules of the Superior Courts ought to be revised to provide more clarity on the circumstances which give rise to a case being struck out for want of prosecution;
• that the Primor Test had become ineffective; and
• that both the High Court and the Court of Appeal had been correct in their Judgments in Kirwan v Connors & Ors.

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

• Before two years of inactivity a claim should only be dismissed if it constitutes an abuse of process or if there is prejudice to the defendant;
• After two years of inactivity a claim can be dismissed but only if there is some additional prejudice or factor pointing towards dismissal;
• After four years of inactivity, the onus is on the Plaintiff to justify the continuation of the proceedings;
• After five years of cumulative inactivity, the Court should dismiss the case unless there is an exceptional disadvantage to the Plaintiff or if there is a compelling public interest for the case to proceed.

This decision typifies the importance which the judiciary places on efficiency in legal proceedings in the Irish Court system. The decision also signifies a change in approach from one that emphasized a person’s right to justice and their right to prosecute their claim to one that places more focus on how significant delay can negatively impact a defending party.

For more information please contact Bernard King.

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