Abolition of Prejudice Requirement in Dismissal – Kirwan v Connors (Approved) [2025] IESC 21

1. Introduction

Kirwan v Connors & ors ([2025] IESC 21) is a landmark Supreme Court of Ireland decision delivered on 30 May 2025 by Mr. Justice Maurice Collins (with O’Donnell C.J., Dunne, Charleton, O’Malley, Hogan, Murray and Collins JJ. concurring in part). The appellant, Mr. Brendan Kirwan, initiated a complex multi-party tort and contract claim against a number of solicitor-defendants (MJ O’Connor Solicitors and related individuals) and corporate defendants (Filbeck Limited and members of the Buttle family). The defendants counter-applied for dismissal of the proceedings for want of prosecution under the court’s inherent power and Order 122, Rule 11 RSC.

The core issue was whether the long delay (post-2013) in prosecuting the action justified dismissal and, more fundamentally, whether a defendant must still establish “prejudice” before dismissal. In sweeping away the 1996 Primor Plc v Stokes Kennedy Crowley test and discarding the prejudice requirement, the majority of the Court introduced a new sliding-scale dismissal regime tied to fixed periods of delay (2, 4 and 5 years).

2. Summary of the Judgment

• The Court formally overruled Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459, ending the longstanding requirement that a defendant must prove “serious prejudice” before the court can dismiss proceedings for delay.

• In its place, the majority adopted a three-tiered “sliding scale” based solely on the length of delay:

• 2 years’ inaction: rebuttable presumption of unfairness to defendant;
• 4 years’ inaction: stronger presumption favoring dismissal;
• 5 years’ inaction: near-automatic ground for dismissal absent exceptional circumstances.

• The decision will take effect prospectively; existing cases (including Kirwan) are to be decided under the pre-Primor test requiring prejudice.

3. Analysis

3.1 Precedents Cited

1. Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459 – devised a fact-driven list of factors, anchored in “inordinate and inexcusable delay” plus proof of a “substantial risk” of unfair trial or “serious prejudice to the defendant.” It drew on:

• Dowd v Kerry County Council [1970] IR 27 – early Irish case emphasizing missing witnesses as prejudice;
• Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 – House of Lords held dismissal “draconian,” requiring (a) inordinate & inexcusable delay, (b) risk to fair trial, and (c) serious prejudice;
• Birkett v James [1978] AC 297 – affirmed need for proof of serious prejudice even if statute of limitations lapsed;
• Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197 – refused to strike out solely for deterrence absent prejudice.

2. O’ Domhnaill v Merrick [1984] IR 151 – related but distinct jurisdiction to dismiss in the “interests of justice.” 3. Hogan v Jones [1994] 1 ILRM 512 – dismissal only to protect defendant’s right to fair procedure.

3.2 Legal Reasoning

• The majority concluded that Primor’s prejudice threshold produced uncertainty and consumed resources. They held that a purely time-based test would enhance predictability, deter dilatory plaintiffs, and align with Article 6(1) ECHR’s requirement for “determination within a reasonable time.”

• The sliding-scale test dispenses with any requirement to prove prejudice. Instead, defined delay-bands operate as presumptions that the court must weigh absent exceptional justification.

• Dissent (Collins J): criticized abandonment of prejudice requirement as inconsistent with centuries of authority; warned of constitutional implications for access to courts and fair trial; urged stronger case management instead.

3.3 Impact

• Litigation practice will shift: plaintiffs now face stricter dismissal risk based on elapsed time alone; defendants need not prove prejudice but can rely on delay bands.

• Courts will need to develop guidance on “exceptional circumstances” and avoid “mechanical” application.

• Strong impetus for active case management, rule reforms and limitation-period revisions to reduce pre-commencement delay.

4. Complex Concepts Simplified

• Primor Test: Former requirement to show (1) inordinate/excusable delay, (2) risk to fair trial or serious prejudice, and (3) high threshold before dismissal.
• Prejudice: harm to defendant’s ability to defend (e.g. lost witness memory, destroyed documents), or unfair litigation advantage.
• Want of Prosecution: failure by plaintiff to take any step in the action over a significant period.
• Inherent Power: the court’s built-in authority to control its own processes and prevent injustice, independent of rules.
• Article 6(1) ECHR: requires that civil cases be decided “within a reasonable time,” imposing a positive duty on courts.

5. Conclusion

Kirwan v Connors (Approved) [2025] IESC 21 marks a decisive shift in Irish civil procedure by abolishing the prejudice requirement for striking out dilatory claims. A new time-based sliding scale governs dismissal applications, trading detailed fact-driven discretion for a clearer calendar-driven regime.

While proponents argue this will promote expedition and predictability, critics warn of risks to access to justice and the fairness of trial decisions untested on merits. The decision places a premium on more robust case-management rules and may spur legislative and procedural reforms to curtail delay at every stage.