The “Five-Year Inactivity / Pressing-Exigency” Test: High Court Applies Kirwan v. Connors to Strike-Out in Nowak v. Institute of Chartered Accountants in Ireland

1. Introduction

Peter Nowak’s long-running dispute with the Institute of Chartered Accountants in Ireland (ICAI) over examination results and alleged data-protection breaches reached a decisive end on 16 July 2025. Mr Justice Barry O’Donnell of the High Court, applying the brand-new guidance of the Supreme Court in Kirwan v. Connors & Ors. ([2025] IESC 21), struck out Mr Nowak’s 2015 plenary action for want of prosecution. The judgment is the first detailed High Court application of Kirwan, cementing a re-formulated approach to delay: once a cumulative period of complete inactivity exceeds five years, a court “should feel free” to dismiss proceedings unless a pressing exigency of justice justifies survival.

Key Facts at a Glance

Parties: Peter Nowak (plaintiff, self-represented); Institute of Chartered Accountants in Ireland (defendant).
Claim: €50 m damages, declarations of illegality, allegations of forgery and data-protection breaches concerning 2009 professional examinations.
Procedural timeline: Last step by plaintiff – discovery request (Dec 2015). Next step – motion for preliminary issues (May 2024). Period of inactivity: ~8.5 years.
Application: ICAI sought dismissal under Order 122, rule 11 RSC and/or inherent jurisdiction.

2. Summary of the Judgment

The Court held that:

The plaintiff’s eight-and-a-half-year inactivity fell squarely within the “more than five years” category identified by the Supreme Court in Kirwan.
No “pressing exigency of justice” existed to excuse the delay. Alleged agreements or acquiescence by the defendant were unsupported by evidence.
The plaintiff failed to serve a mandatory “notice of intention to proceed” under O. 122 r. 11, depriving the defendant of the procedural safeguard intended by the rule.
Accordingly, the action was struck out and the plaintiff’s own pending motion for preliminary legal issues was also dismissed. Costs were provisionally awarded to the defendant.

3. Analysis

3.1 Precedents Cited

Kirwan v. Connors & Ors. [2025] IESC 21 – Supreme Court overhauled the traditional Primor test. Key features:
- Two-tier analysis anchored to Order 122 RSC timelines.
- Two-year inactivity: triggers scrutiny but dismissal not automatic.
- Five-year complete inactivity: court “should feel free” to dismiss unless a pressing exigency of justice exists (para 26(iv) O’Donnell CJ).
- Silence or mere inactivity by defendant doesn’t bar dismissal; only express acquiescence or inducement might do so.
Primor Plc v. Stokes Kennedy Crowley [1996] IR 459 – classic three-limbed test (blameworthy delay, balance of justice). Kirwan recalibrated the weighting of factors, giving greater intrinsic weight to passage of time itself.
Other procedural jurisprudence: comments from Murray J., Hogan J., and O’Donnell CJ. on defendant obligations, notion of acquiescence, and operation of O. 122.

3.2 Court’s Legal Reasoning

Identification of Inactivity Period: The last valid “proceeding” was the plaintiff’s discovery request (Dec 2015). The May 2024 motion did not qualify because no notice to proceed had been served and, per the rule, a motion on which no order is made is not a “proceeding”.
Application of the Five-Year Threshold: Exceeding five years activated a rebuttable presumption favouring dismissal. The burden shifted to the plaintiff to demonstrate a pressing exigency.
Rejection of Excuses:
- Implied Agreement: Plaintiff’s own correspondence disproved any agreement in 2015 to pause proceedings.
- Acquiescence: Defendant’s silence after a 2016 letter did not amount to acquiescence because the referenced PWC proceedings ended in 2017 and defendants have no duty to prod plaintiffs.
- Parallel Litigation: Self-imposed burden of multiple suits is not a justification for delay toward another defendant.
No Pressing Exigency of Justice: The alleged seriousness of claims (forgery, deceit) was insufficient absent concrete proof that justice demanded a trial. Witness availability concerns weighed against continuation.
Procedural Breach: Failure to serve O. 122 notice removed defendant’s opportunity to act sooner, compounding prejudice.

3.3 Potential Impact on Future Litigation

Operationalising Kirwan: The decision demonstrates how Irish courts will routinely dismiss cases with >5 years’ inactivity unless plaintiffs satisfy the “pressing exigency” threshold.
Heavier Onus on Plaintiffs: Litigants must actively manage cases—parallel proceedings, self-representation or resource constraints will rarely suffice as excuses.
Notice to Proceed Becomes Critical: Serving the O. 122 notice has strategic importance; failure to do so may forfeit a last chance to revive dormant litigation.
Defendants’ Strategy: Defendants may opt to wait out the two-year period, confident that after five years they hold a robust ground for dismissal without being penalised for passivity.
Residual “Pressing Exigency” Gateways: Future claimants may test what qualifies—e.g., public-interest constitutional issues, vulnerable litigants, or instances of defendant misconduct—but the bar is intentionally high.

4. Complex Concepts Simplified

Order 122, rule 11 RSC: A procedural rule allowing dismissal of cases that have been dormant. One year’s inactivity requires a “notice of intention to proceed”; two years allows the defendant to seek dismissal.
Inherent Jurisdiction: Courts’ inherent power to manage proceedings, used when procedural rules do not expressly cover the situation.
Striking Out for Want of Prosecution: Termination of a lawsuit because the plaintiff failed to advance it diligently.
Acquiescence vs. Inactivity: “Acquiescence” implies the defendant did something—by word or conduct—to encourage delay, whereas mere “inactivity” means the defendant simply did not act; only the former may block a strike-out.
Pressing Exigency of Justice: Exceptional reasons—such as serious public-interest questions or defendant wrongdoing—that override the default preference to dismiss dormant cases.

5. Conclusion

O’Donnell J.’s ruling in Nowak is more than a case-specific dismissal: it is a blueprint for applying the Supreme Court’s recalibrated delay doctrine. Under the “five-year inactivity / pressing-exigency” test, the mere passage of time possesses intrinsic power to end litigation. Plaintiffs must be vigilant; defendants may rely on the procedural architecture without fear of being labelled dilatory. The judgment thus advances the goals of expedition, finality, and fairness that underpin modern civil justice in Ireland.