Delay Strike-Out in Medical Negligence: Where Inactivity Is Under Two Years, Dismissal Requires Abuse of Process or O’Domhnaill v. Merrick-Level Prejudice—Death of the Clinician Alone Is Insufficient Without Evidential Foundations

1. Introduction

This decision concerns an application by the Sixth Named Defendant (“JD”), a consultant urologist (now deceased), to strike out the plaintiff’s medical-negligence claim against him for want of prosecution, alleging inordinate and inexcusable delay both before and after JD was joined. The plaintiff (“PC”) sues multiple defendants arising from complications following a January 2015 procedure involving insertion of a Gynaecare TVT mesh device. JD’s involvement is alleged to have occurred during follow-up care between late 2015 and April 2016, with the plaintiff contending he failed to consider Botox treatment and failed to recommend total mesh excision despite “chronic symptoms”.

The central issues were:

• What test applies to a strike-out motion where the litigation has not had two years of complete inactivity (in light of Kirwan v. Connors).
• Whether delay (including pre-joinder delay) was inordinate/inexcusable and whether it caused prejudice sufficient to justify dismissal, especially after JD’s death in March 2024.
• Whether asserted prejudice was evidenced, including what steps were taken to locate JD’s records, identify other witnesses, and otherwise assess the true forensic impact of his death.

2. Summary of the Judgment

The Court found that:

• There had been identifiable periods of delay (including a substantial gap between JD’s last involvement in April 2016 and his joinder in March 2022; a gap between the November 2020 expert report and the December 2021 joinder motion; and late replies to particulars).
• However, the case did not fall within a “two years’ total inactivity” scenario; a “step” had occurred within two years (notably the plaintiff’s May 2024 motion for judgment in default of defence), so the stricter dismissal regime for prolonged inactivity was not engaged.
• Accordingly, the application fell under the Kirwan v. Connors category for under two years’ inactivity: dismissal only if the claim is an abuse of process or if there is prejudice at the level required by O’Domhnaill v. Merrick.
• The Court rejected the plaintiff’s attempt to frame the case as “binary” and documentary-only; JD’s potential evidence could matter not merely to whether treatments were recommended, but why not, and what occurred in clinical interactions.
• Nevertheless, the moving party’s prejudice case was weakened by a “complete lack of evidence” as to steps taken to locate notes, contact the estate/family meaningfully, or identify other witnesses (colleagues/assistants/administration) who might reconstruct the relevant care.
• Even if delay might be “inordinate”, it was not shown to be “inexcusable” on the evidence, and the balance of justice did not justify strike-out.

3. Analysis

3.1 Precedents Cited

(a) Kirwan v. Connors [2025] IESC 21

Kirwan v. Connors is the controlling modern authority. Ms. Justice Jackson applied the Chief Justice’s framework (quoted at para. 26 of Kirwan), which creates time-based “milestones” and assigns different thresholds for dismissal depending on total inactivity.

• Key rule applied: Where inactivity is less than two years, a claim “should only be dismissed if” it is an abuse of process or there is prejudice at the O’Domhnaill v. Merrick level.
• Why it mattered here: The moving party argued both pre- and post-commencement delay, but could not place the case into the “two years’ total inactivity” category; there was a step within the relevant period, meaning the Court treated the application under Kirwan para. 26(i).
• Doctrinal emphasis adopted: The judgment echoes Kirwan’s insistence that passage of time is important, and that defendants are not obliged to advance plaintiffs’ cases—yet the quantified milestone (two years’ inactivity) is decisive for which threshold applies.

(b) O’Domhnaill v. Merrick [1984] I.R. 151

The Court treated O’Domhnaill v. Merrick as the benchmark for prejudice where inactivity is under two years (as directed by Kirwan). The judgment restated Henchy J.’s balancing formulation: the court must strike a balance between the plaintiff’s need to proceed and the defendant’s right not to face an unfairly undefendable claim.

Although JD’s death is obviously a potentially serious prejudice factor, the Court required a grounded demonstration of how the trial would be rendered unfair, and found that the moving party had not provided evidence of investigative steps that would allow the Court to measure the true forensic deficit.

(c) Neister v. Leinster Senior College Limited [2026] IEHC 15

This case was cited for post-Kirwan clarifications: time can itself justify dismissal; defendant inactivity is not normally a bar; no presumption against dismissal; and strict case management directions are available as an alternative to dismissal. Ms. Justice Jackson’s approach is consistent with Neister, but she located this case in the Kirwan “under two years inactivity” category, where dismissal is exceptional.

(d) Holmes v Ireland and Ors [2026] IEHC 2

Holmes was referenced for a structured set of “Kirwan principles”: power to dismiss (inherent and/or O.122 r.11), increasing presumption towards dismissal as time passes, and the “not co-adventurers” idea. The present case shows how those principles remain constrained by the Kirwan milestone structure: where there is no two-year inactivity, the presumption toward dismissal does not operate in the same way.

(e) Gilchrist v. Sunday Newspapers Limited [2017] IECA 190

The Court used Gilchrist to frame the narrow Irish abuse-of-process strike-out jurisdiction where there is no ulterior purpose: abuse is not established merely by delay unless it can be shown there is no benefit to the plaintiff in pursuing the claim (and other abuse categories do not apply). This helped dispose of the “abuse of process” limb.

(f) Dunnes Stores v. An Bord Pleanála [2015] IEHC 716

Cited as additional guidance on abuse of process (as referenced in Delany and McGrath on Civil Procedure). Its role here is supportive: it anchors the Court’s conclusion that this case did not meet the stringent abuse threshold.

(g) Other cited cases and their role

• Celtic Ceramics Limited v. IDA, Hunt and Others 1992 WJSC-HC 3185 and 1998 WJSC-SC 656: relied on by the moving party for the proposition that both pre- and post-commencement delays may be considered in a delay strike-out analysis. The Court accepted that principle.
• Cunningham v. Neary [2004] IESC 432: invoked by the moving party to argue the plaintiff’s illness/medical treatment should not excuse delay. The Court distinguished it as a “date of knowledge” limitation case under s.3 of the Statute of Limitations (Amendment) Act 1991, i.e., a different question from want of prosecution.
• Dennis Guilfoyle Developments Limited v. Wardrop [2025] IEHC 414 and Nowak v. Institute of Chartered Accountants in Ireland [2025] IEHC 408: raised by the plaintiff to show that post-Kirwan strike-out cases often involved dramatically longer inactivity than here; the Court accepted that the present case did not feature such prolonged inactivity.

3.2 Legal Reasoning

(1) Categorisation under the Kirwan inactivity framework

The Court’s first decisive move was to classify the case under Kirwan para. 26(i) (under two years’ total inactivity). This turned on whether the proceedings had “remained fallow” for two years; they had not, because a litigation “step” occurred within that period (the May 2024 motion for judgment in default of defence, and the February 2024 affidavit of verification also featured in the timeline).

This classification mattered because it elevated the defendant’s burden: general complaints about delay were insufficient; dismissal required either (i) abuse of process, or (ii) O’Domhnaill-level prejudice.

(2) Recognising—yet containing—the significance of JD’s death

The Court acknowledged that JD’s death “clearly renders the proceedings difficult” and rejected the plaintiff’s submission that the issues were purely binary and essentially record-based. The Court identified three dispute areas:

• (a) what treatments were/were not recommended;
• (b) what treatments ought to have been recommended (standard of care); and
• (c) why recommendations were not made (clinical reasoning and context).

This analysis underscores why, in professional negligence claims, the clinician’s narrative evidence may be central—especially where the claim concerns clinical judgment, option appraisal, and advice. Nonetheless, the Court required the moving party to go beyond asserting “extreme prejudice”.

(3) Evidential deficit on the prejudice case

The most practically significant aspect of the reasoning is the Court’s insistence on evidential foundations for claimed prejudice. The moving party’s affidavit asserted: (i) limited documentation, (ii) the necessity of JD’s input, and (iii) difficulty defending without him. But the Court found a “complete lack of evidence” as to:

• meaningful contact with the estate/family to determine what clinical or practice records existed;
• enquiries as to colleagues, assistants, administrative staff, or other third parties who might provide context or corroboration;
• what steps were taken to assess the existence/absence of “treating notes” rather than treating their absence as an assumption.

The Court expressly noted that, had such enquiries been made and proven fruitless, prejudice would “have to be considered in a different light”. In effect, the judgment requires that an applicant who relies on a clinician’s death as prejudice should demonstrate due diligence in reconstructing the evidential picture before the court will conclude the trial is unfair.

(4) Balancing conduct on both sides

Without imposing any duty on a defendant to advance a plaintiff’s claim, the Court nonetheless considered the timeline in the round: JD was on notice of a potential claim from 2021 (letter of claim), yet instructions “do not appear to have been taken” between joinder in March 2022 and his death two years later. The Court treated that as relevant context when weighing whether the prejudice was truly attributable to the plaintiff’s delay, as opposed to avoidable inertia in preserving JD’s evidence once the claim was in view.

(5) Delay explanations accepted as potentially exculpatory

The Court treated the plaintiff’s explanations—Covid-related disruption and significant ongoing medical issues with extensive multi-consultant treatment—as at least partly addressing the joinder timing and particulars delay. The Court rejected the attempt to use Cunningham v. Neary to render illness irrelevant, distinguishing that authority as limitation-law specific.

3.3 Impact

The decision is likely to influence Irish delay strike-out motions—particularly in professional negligence cases—by reinforcing several practical propositions:

• Milestone discipline matters: If there is not two years’ total inactivity, defendants face the higher Kirwan para. 26(i) threshold (abuse or O’Domhnaill-level prejudice), even where the overall chronology contains long pre-joinder or pre-issue gaps.
• Death is a prejudice factor, not a trump card: A defendant’s death does not automatically prove an unfair trial; applicants should expect to demonstrate concretely what evidence cannot now be obtained and what investigative steps have been exhausted.
• Pre- and post-commencement delay can be considered (consistent with Celtic Ceramics Limited v. IDA, Hunt and Others 1992 WJSC-HC 3185 and 1998 WJSC-SC 656), but the remedy (strike-out) remains highly sensitive to the current inactivity category under Kirwan.
• For practitioners: Applicants should build a detailed prejudice record (records searches, estate enquiries, staff witness enquiries, insurer instruction timelines). Respondents should focus on (i) the absence of two-year inactivity, (ii) evidence of steps taken, and (iii) alternative case-management solutions short of strike-out.

4. Complex Concepts Simplified

• Strike out for want of prosecution: Dismissing a claim because the plaintiff has not progressed it with reasonable speed, risking injustice or inefficiency.
• Inordinate and inexcusable delay: Delay that is (i) excessive and (ii) not adequately explained. Even if delay is long, courts assess whether it is excusable in context.
• Total inactivity vs. general delay: Post-Kirwan, “total inactivity” milestones (2/4/5 years) are critical. A case may have long overall timelines but still not qualify as having two years of complete inactivity if steps were taken within that period.
• “Step” in proceedings: A procedural action that moves the case forward (e.g., issuing a motion). If taken within two years, it can prevent the case being treated as “fallow”.
• O’Domhnaill v. Merrick prejudice: A high threshold: prejudice so serious that the defendant cannot reasonably be expected to defend the claim fairly.
• Abuse of process: Using court proceedings improperly (e.g., no legitimate benefit, ulterior motive, vexatiousness). Delay alone does not necessarily equal abuse.
• Notice for Particulars: A request for clarification of pleadings (details of allegations). Delayed replies can be relevant to prosecution of the case.
• Discovery: Exchange of relevant documents. In negligence litigation, discovery can reduce reliance on memory, but it rarely eliminates the importance of clinical reasoning evidence.
• Joinder / concurrent wrongdoer: Adding parties alleged to share responsibility. This often follows receipt of expert evidence identifying additional breaches.

5. Conclusion

Casey v Skehan and Ors applies the post-Kirwan delay framework with a clear operational message: where there has not been two years of complete inactivity, a defendant seeking dismissal must show abuse of process or prejudice at the demanding O’Domhnaill v. Merrick level. Even in the exceptional situation where the professional defendant has died, the court will expect an evidence-based demonstration of prejudice, including proof of reasonable efforts to locate records and alternative witnesses, rather than reliance on assertion.

The judgment also illustrates a pragmatic balancing approach: acknowledging genuine delay concerns and the forensic complications of a deceased clinician, while refusing to impose the ultimate sanction of strike-out in the absence of a properly evidenced unfair-trial risk—leaving case management and progression to trial as the more proportionate route.