Strike-out for Delay in Judicial Review: Applying Kirwan v Connors Case-Sensitively, Rejecting “Covid as a Blanket Excuse”, and Treating Likely Oral Evidence as a Prejudice Multiplier

1. Introduction

D.O'H v Tusla/The Child and Family Agency concerns an application by Tusla to strike out long-running judicial review proceedings for delay, pursuant to O.122 of the Rules of the Superior Courts and/or the court’s inherent jurisdiction. The applicant father alleged constitutional and ECHR wrongs arising from Tusla’s management of his relationship with his son (DJ), who had been in care under s.18 of the Child Care Act 1991. The asserted wrongs included: (i) failure to provide information about the child’s whereabouts, (ii) inadequate access arrangements, and (iii) alleged recording of access visits without consent.

Procedurally, the case had already generated substantial interlocutory complexity: it first came on for hearing in October 2018; the Attorney General was joined; and in [2019] IEHC 459 Ní Raifeartaigh J. removed the child as a co-applicant, appointing a guardian ad litem (GAL) as notice party to represent the child’s interests and to ensure the child’s voice was appropriately before the court. The father appealed but withdrew the appeal in February 2020. In March 2020, the High Court directed the GAL to provide an affidavit addressing how effect would be given to the child’s voice in the judicial review.

Tusla’s strike-out motion issued on 28 January 2025. By the time it was heard (January 2026), the child had long since reached majority (June 2022) and the GAL was released on consent. The central question became whether the period of inactivity—particularly post-2022—justified dismissal under the Supreme Court’s refined approach to delay in Kirwan v Connors [2025] IESC 21.

2. Summary of the Judgment

Barr J. struck out the proceedings against Tusla for delay. The court:

  • Accepted that Kirwan v Connors [2025] IESC 21 supplies the governing framework, but emphasised it must be applied case-sensitively, not as a “rigid mathematical formula”.
  • Found that some early inactivity was not fairly attributable to the applicant (the case could not realistically be re-listed until the GAL affidavits were produced; and Tusla’s solicitor indicated in November 2021 that Tusla would seek to re-enter/re-list the matter).
  • Nonetheless held there was culpable and inexcusable delay from approximately June 2022 to January 2025 (save for an eight-week period in 2023), exceeding two years.
  • Found significant prejudice to Tusla in defending allegations relating to events largely pre-dating 2016, especially because the remaining disputed issues would likely require oral evidence (with consequent risks of fading recollection and witness availability).
  • Rejected the argument that Covid restrictions generally prevented affidavit-based High Court lists from operating (noting remote hearings were up and running by mid-May 2020).
  • Held the case was not moot despite the child’s majority, because the claim included damages for alleged constitutional/ECHR breaches.
  • Declined to entertain (as a strike-out ground) the contention that the District Court was the proper forum for access/information issues, treating it as a merits issue for trial and noting it was not the relief sought in the motion.

3. Analysis

3.1 Precedents Cited

Kirwan v Connors [2025] IESC 21

The judgment is a direct, practical application of Kirwan to public law proceedings. Barr J. recited and applied the Chief Justice’s majority formulation (para. 26) emphasising the independent importance of time and introducing milestones of two, four, and five years of total inactivity, with a shifting onus towards dismissal as inactivity lengthens—especially where the claim depends on oral evidence.

Two aspects are particularly important in how Kirwan is operationalised here:

  • Case-sensitivity: The court accepted that the framework is not a mechanical calculator; it must be applied contextually (referencing Murray J.’s guidance on avoiding rigid application).
  • Oral evidence as a hinge factor: Even though judicial review is commonly affidavit-based, Barr J. found the surviving controversies (what information/access was afforded; whether actions were proper) could not be decided on affidavit and would require oral evidence—making the case fall closer to the category where delay more readily generates the kind of prejudice contemplated by Kirwan.

O Domhnaill v Merrick (jurisdiction referenced)

While not fully elaborated in this judgment, the reference is significant: it marks the older, prejudice-focused “want of prosecution” approach. Barr J. used the Kirwan scheme which partly displaces the need to prove specific prejudice at longer inactivity thresholds, but still recognises that at (and just beyond) the two-year point, dismissal generally requires serious or significant prejudice (e.g., witness unavailability or lost evidence) of the type associated with the O Domhnaill v Merrick jurisdiction.

O'Brien v PIAB [2006] IESC 62

The applicant relied on O'Brien to argue that even if the case were moot, it should proceed under a public interest exception. Barr J. did not ultimately need to decide the public interest exception because he held the case was not moot (damages survived). Nonetheless, the invocation of O'Brien frames an important boundary: “mootness” analysis is distinct from “delay/strike-out” analysis. Even if a case raises issues of public importance, it may still be dismissed where delay renders a fair trial impracticable or unjust.

High Court applications of Kirwan

Barr J. located his approach within an emerging post-Kirwan High Court line: Denis Guilfoyle Developments v Wardrop [2025] IEHC 414, O'Kelly v McGovern [2025] IEHC 704, Nowak v Institute of Chartered Accountants in Ireland [2025] IEHC 408, and Doyle v Commissioner of An Garda Siochana [2025] IEHC 591. The citation of these cases underlines that Kirwan is being treated not as an abstract restatement but as a working, routinely-applied strike-out tool across litigation types (private and public law).

[2019] IEHC 459 (Ní Raifeartaigh J.)

Though not a delay precedent, [2019] IEHC 459 mattered in two ways:

  1. It created the procedural condition precedent (the GAL’s role and “voice of the child” directions) that partly explained why the case could not simply be pushed back on for hearing immediately after March 2020.
  2. It highlighted the “utmost importance” of the subject matter—care arrangements and a parent-child relationship—an importance the applicant later invoked to resist dismissal. Barr J. acknowledged the seriousness but treated it as insufficient to overcome the fairness/prejudice concerns generated by the ultimate effluxion of time.

3.2 Legal Reasoning

(a) Identifying “reckonable” vs “excusable” delay

A notable feature of the judgment is its granular separation of (i) periods where inactivity is not fairly counted against the plaintiff, and (ii) periods of culpable delay. The court accepted that the case could not realistically progress until the GAL complied with March 2020 directions, and it accepted (as stated in open court) that the applicant’s solicitor was not served with the GAL affidavits sworn in October/November 2021.

The judgment then addresses November 2021 correspondence in a practically important way: Tusla’s solicitor told the applicant’s solicitor that Tusla would contact the registrar to re-enter/re-list the matter and would revert with a mention date. Barr J. held that where one party states it will take a procedural step, it cannot immediately blame the other party for not doing so; the applicant’s solicitor was entitled to await follow-up for a reasonable period. But the entitlement was not open-ended: a reasonable waiting period was fixed at four months, after which the onus returned to the party with carriage of proceedings to make enquiries and move the case.

(b) Covid is not a blanket excuse in affidavit-based lists

Barr J. rejected a generalised submission that Covid restrictions prevented listing, distinguishing between witness actions and hearings “on affidavit”. He held that remote arrangements meant the relevant list could operate from mid-May 2020. This element functions as an evidential/judicial-notice point: parties must be careful about advancing broad “Covid delay” explanations without demonstrating a direct causal link to the inability to take concrete steps (especially in non-oral-evidence contexts).

(c) Solicitor incapacity: humane recognition, but professional obligations remain

The judgment recognises the solicitor’s family crisis (his wife’s cancer diagnosis and death) as a genuine impediment, allowing a defined excusable period (16 weeks). However, it also articulates a clear professional norm: where a professional cannot attend to clients’ affairs for extended periods, they must make alternative arrangements (additional staff, transferring files, or other measures). The court treated the balance of the period as culpable delay.

(d) Prejudice and the “true nature” of what remains to be tried

A central move is Barr J.’s reassessment of the proceedings’ practical trial format. Although judicial review is generally determined on affidavit, he held that the remaining contested issues (information/access and propriety of conduct) would require oral evidence. That finding intensified the prejudice analysis: Tusla would face the real risk that employees/former employees could not reliably recall meetings/events dating to (and before) 2016, in a hearing likely taking place in 2026.

This is the judgment’s key bridge between public law form and private law trial realities: the court treated the case as one where delayed adjudication would likely be unfair in evidential terms, aligning it with the rationale in Kirwan that long inactivity is particularly problematic where oral testimony is central.

(e) Mootness distinguished from dismissal for delay

The court accepted that many forward-looking/access-related remedies were overtaken by events once DJ reached 18 and left Tusla care, but it held the case was not moot because damages claims for past wrongs do not “expire merely because the continuance of the alleged wrong has ceased.”

Yet, despite rejecting mootness, the court still dismissed for delay. The message is doctrinally important: a claim can remain live in the abstract (especially via damages) and still be struck out where delay makes a fair trial unjust.

(f) “Alternative remedy in District Court” treated as merits, not interlocutory strike-out

Tusla argued that access/information issues should have been pursued in the District Court care-review process. Barr J. treated that as a substantive defence potentially barring relief, but not a basis to strike out for delay at this stage—also noting it was not the relief sought in the motion. This reflects procedural discipline: strike-out applications should not be used to smuggle merits determinations unless the pleadings and motion squarely raise an established summary disposal route.

3.3 Impact

(a) Judicial review can become “oral evidence dependent” in substance

The judgment signals that courts may look behind the label “judicial review” and ask what the case actually requires to be fairly determined. Where the remaining controversies are fact-heavy and contested, the court may treat the case as effectively dependent on oral evidence and therefore more vulnerable to dismissal under Kirwan milestones.

(b) Clear warning against passive reliance on opponents’ procedural assurances

Although the court credited Tusla’s November 2021 letter as temporarily relieving the applicant’s solicitor of re-listing, it imposed a concrete “reasonable period” (four months) after which inertia becomes culpable. Future litigants should record, chase, and verify steps taken—especially where the other side says it will move the file.

(c) Covid explanations will be scrutinised for list-specific reality

The court’s findings on remote hearings demonstrate that “Covid” will not automatically explain inactivity; parties should show how restrictions specifically prevented the relevant procedural step (rather than asserting general disruption).

(d) Professional incapacity is recognised but not an indefinite justification

The judgment is likely to be cited where delay is attributed to solicitor unavailability due to personal tragedy. It sets a practical template: courts may allow a humane allowance but still require professionals to protect clients’ interests by arranging cover.

(e) Damages preserve justiciability, but not immunity from strike-out

The court’s “not moot” holding confirms that constitutional/ECHR damages claims can keep proceedings live after the underlying child-care situation ends. But the strike-out result equally confirms that damages do not insulate a case from dismissal where delay undermines fair adjudication.

4. Complex Concepts Simplified

  • Order 122 RSC / inherent jurisdiction: mechanisms allowing the High Court to dismiss proceedings where a party has not prosecuted them with due diligence, in order to prevent unfairness and protect the administration of justice.
  • Strike-out for delay / want of prosecution: dismissal because a claimant let the case stagnate for too long, making a fair trial harder or unjust.
  • “Total inactivity”: periods where nothing meaningful is done to progress the case (as used in Kirwan to set milestone thresholds).
  • Prejudice (in this context): disadvantage to the defending party caused by delay—commonly fading memories, lost documents, unavailable witnesses, and the increased risk of an inaccurate fact-finding process.
  • Mootness: a case is moot where the dispute has ceased to exist so the court’s decision would have no practical effect; however, a claim for damages for past wrongs usually keeps a dispute “live”.
  • Guardian ad litem (GAL) / notice party: a GAL is appointed to represent a child’s interests; a notice party participates because the outcome may affect them, even though they are not the primary claimant/defendant.
  • Affidavit hearing vs oral evidence: many judicial reviews proceed on sworn written evidence (affidavits). Where facts are sharply disputed, courts may require oral testimony and cross-examination, which increases the risk of prejudice from delay.

5. Conclusion

D.O'H v Tusla/The Child and Family Agency (Approved) [2026] IEHC 53 is a pragmatic, fact-sensitive application of Kirwan v Connors [2025] IESC 21 to a complex child-care-related judicial review. It clarifies that:

  • Kirwan is not a rigid stopwatch, but time remains a powerful, sometimes decisive, factor.
  • Courts will dissect delay into excusable and culpable segments and may impose concrete expectations (e.g., how long it is reasonable to await an opponent’s promised step).
  • Judicial review proceedings can still be struck out where, in substance, they will require oral evidence and the effluxion of time makes that fact-finding exercise unfair.
  • The presence of a damages claim may defeat mootness, but it does not prevent dismissal where delay and prejudice make a fair trial contrary to the interests of justice.

The decision therefore reinforces an increasingly strict, management-oriented approach to dormant litigation in Ireland, while also offering concrete guidance on what will—and will not—count as an acceptable explanation for prolonged inactivity.