Dooley v Florentine Properties Ltd and Anor [2026] IEHC 170 — Exceptional-Circumstances Threshold Post-Kirwan: Personal Hardship Must Be Evidenced as Litigation-Inhibiting

1. Introduction

This High Court decision (Jordan J, 19 March 2026) concerns a defendant’s application to dismiss long-stayed plenary contract proceedings for want of prosecution under O.122 r.11 of the Rules of the Superior Courts and under the court’s inherent jurisdiction for inordinate and inexcusable delay.

The plaintiff, Gabriel Dooley, sued Florentine Properties Limited and Ballymore Ireland Group Limited in relation to contracts dating from 2005 and an alleged breach in November 2010. Proceedings issued in March 2013 but then progressed intermittently, with lengthy gaps. The plaintiff attributed delay primarily to severe financial distress, physical illness, mental health difficulties, and his period as a litigant in person after his original solicitors ceased to act.

The central issues were:

• whether the delay was “inordinate and inexcusable” such that the court should strike out; and
• following the Supreme Court’s clarification in Kirwan v Connors & Ors. [2025] IESC 21 (“Kirwan”), whether the plaintiff established “exceptional circumstances” (a “pressing exigency of justice”) sufficient to avoid dismissal despite egregious inactivity.

2. Summary of the Judgment

The court dismissed the proceedings for want of prosecution. It held that:

• there were aggregate periods of inactivity well in excess of 10 years since issue, and no “proceeding” had been delivered since June 2016 (notices of intention to proceed do not qualify);
• the total unexplained delay exceeded five years, engaging the Kirwan approach: the court should feel free to dismiss unless satisfied a pressing exigency of justice requires the case to proceed;
• the plaintiff’s asserted personal circumstances (health, finances, lay litigant status, other litigation pressures) did not amount to exceptional circumstances excusing the delay, particularly in light of evidence showing his sustained capacity to participate in other complex legal processes during the relevant period;
• having found no exceptional circumstances, the court did not need to decide prejudice, but it nonetheless observed that significant prejudice was probable given the age of the events, staff turnover, and the likely need for extensive oral evidence.

Key procedural timeline (as found / accepted)

3. Analysis

3.1 Precedents Cited

(a) The governing authority: Kirwan

The decision is an application of the Supreme Court’s recalibration in Kirwan v Connors & Ors. [2025] IESC 21, which the plaintiff expressly accepted as representing the most up-to-date approach. The High Court treated Kirwan as establishing that:

• in cases of egregious inactivity (particularly “total unexplained delay” greater than five years), the court should feel free to dismiss; and
• defendant prejudice is no longer a “cardinal requirement” for strike-out in such egregious cases—unless the plaintiff first establishes exceptional factors warranting a different result.

The judgment quotes Murray J’s passage in Kirwan identifying possible “pressing exigency of justice” categories: educational/social/economic disadvantage (citing Guerin v Guerin [1992] 2 IR 287), very unusual public law cases where the public interest demands adjudication (as in “Concast” or McKenna v Farrell [2007] IEHC 343), or serious defendant misconduct—stressing such cases will be “few and far between” and typically where prejudice is weak.

(b) Authorities invoked by the plaintiff to support “excusable” delay

To resist dismissal, the plaintiff relied on the continuing relevance (post-Kirwan) of a line of authority addressing personal and extraneous circumstances:

• Guerin v Guerin [1992] 2 IR 287 (socio-economic disadvantage as potentially exceptional);
• Anglo Irish Beef Processors v Montgomery [2002] 3 IR 510 (contextual assessment of delay);
• McLoughlin v Garvey [2015] IECA 80 (factors informing excusability);
• Gaffney v Commissioner of an Garda Síochána [2017] IECA 52 (Hogan J’s emphasis—cited in submissions—on cumulative extenuating factors);
• Johnson v Calor Teoranta [2018] IEHC 409 (bereavement as a potentially excusing factor); and
• Drug & Machinery Sales Ltd v General Accident & Anor. [1999] IEHC 201 (Geoghegan J: while excuses should relate to the litigation, surrounding circumstances including “extraneous activities” may be weighed in the balance).

Jordan J accepted the methodological point that the plaintiff’s circumstances must be considered, but ultimately held that the evidence did not elevate the plaintiff’s situation into the exceptional category contemplated by Kirwan.

(c) Other decisions used factually to test the credibility of the plaintiff’s asserted incapacity

While not delay authorities, two strands of other litigation were central to the court’s factual evaluation of “exceptional circumstances”:

• Ulster Bank & Ors. v McDonagh & Ors. [2020] IEHC 185 (the plaintiff participated as a witness in lengthy High Court proceedings); and
• the sequence PSRA v Dooley [2023] IEHC 419, PSRA v Dooley [2023] IECA 251, and PSRA v Dooley [2025] IESC DEG 53 (the plaintiff actively engaged, including by motion and appeal, at multiple court levels, at times with legal representation).

These matters were treated as powerful evidence that the plaintiff could, in practice, engage with litigation and legal processes during the years he claimed he was functionally unable to advance his own claim.

3.2 Legal Reasoning

(a) Jurisdictional basis and “procedural reality”

The application was brought under:

• O.122 r.11 (want of prosecution), and
• the court’s inherent jurisdiction to dismiss for inordinate and inexcusable delay.

The court emphasised practical procedural points—many conceded by the plaintiff:

• Notices of intention to proceed and notices of change of solicitor do not amount to “proceedings” for O.122 r.11 purposes; thus, the last relevant “proceeding” was the June 2016 statement of claim.
• Purported further statements of claim delivered in 2023 and 2024 without leave to amend were not valid pleadings for the purposes of resisting an O.122 r.11 strike-out.
• Failure to reply to a notice for particulars (despite reminder) formed part of the overall picture of non-prosecution.

(b) Post-Kirwan framework applied: exceptional circumstances first, prejudice second (if at all)

The plaintiff accepted that, absent exceptional circumstances, the strike-out threshold was met. The dispute therefore centred on whether the plaintiff had shown a Kirwan-type “pressing exigency of justice”.

Jordan J assessed the plaintiff’s claimed matrix of factors (mental health, physical illness, debt/financial collapse, being a lay litigant, and “misguided” attempts to engage through defective pleadings and notices). The court’s key findings were:

• The medical material (including a GP letter of 28 January 2025 referring to stress, antidepressants, and psychiatric assessment in 2019 and 2021) did not state incapacity or inability to litigate; notably, it was written while the strike-out motion was pending.
• Even without an express medical “incapacity” opinion, the court considered the plaintiff’s health evidence—but found nothing demonstrating that his conditions actually prevented prosecution of these proceedings.
• The plaintiff’s extensive activity in other legal disputes, regulatory proceedings, correspondence campaigns, and participation in major litigation was inconsistent with the asserted inability to progress his own case.
• Arguments that other litigation explained the failure to advance this claim were rejected as “baseless”.

Accordingly, the court held the delay was not explained by exceptional circumstances and that there was no “pressing exigency of justice” requiring a trial. The balance of justice therefore favoured dismissal.

(c) Prejudice observations (not determinative, but addressed)

Having found no exceptional circumstances, the court stated it did not need to consider prejudice. Nonetheless, it recorded that prejudice was probable because:

• this was a plenary contract dispute reaching back to 2005/2010 events;
• relevant employees were no longer with the defendants;
• oral evidence would likely be significant (the court rejected the suggestion it would be largely “Is that your signature?” evidence);
• memories fade and evidence becomes “degraded, less certain, clear, persuasive and reliable” (echoing the Supreme Court language quoted from Kirwan).

3.3 Impact

• Operationalising Kirwan in the High Court: This judgment illustrates that once inactivity exceeds five years, the court will focus sharply on whether truly exceptional circumstances are proven; general hardship narratives will be tested against objective evidence of actual litigation capacity.
• Health/financial distress arguments will require a tight evidential link: The case signals that proof of diagnosis, stress, or treatment is not, without more, proof that a party could not prosecute litigation—especially absent a medical opinion addressing functional incapacity.
• “Capacity shown elsewhere” can defeat an “inability” case: Participation in other proceedings (even in a different role, such as witness or regulated person) may be relied on to rebut claims that the plaintiff was unable to progress their own case.
• Procedural missteps will not be treated as progress: Notices of intention to proceed and invalidly-delivered amended pleadings will not rescue a case from O.122 r.11 scrutiny.
• Contract claims are not insulated from temporal prejudice: The court treated an old commercial dispute as inherently likely to require contested oral evidence and thus vulnerable to prejudice through delay.

4. Complex Concepts Simplified

• Plenary proceedings: Full High Court proceedings begun by plenary summons, typically involving pleadings, discovery, witnesses, and trial.
• Want of prosecution (O.122 r.11): A rule allowing dismissal where a plaintiff has failed to take required procedural steps within set periods; the court examines whether there has been meaningful progress.
• Inordinate and inexcusable delay (inherent jurisdiction): A broader power to dismiss where delay is excessive (“inordinate”) and not satisfactorily justified (“inexcusable”), assessed in the interests of justice.
• Exceptional circumstances / pressing exigency of justice (post-Kirwan): Rare factors so compelling that, despite egregious delay, fairness requires the case be allowed proceed (e.g., serious disadvantage preventing prosecution, unusual public interest litigation, or serious defendant misconduct).
• Prejudice: Practical unfairness to the defendant caused by delay (lost witnesses, faded memory, missing documents, reduced evidential reliability). Post-Kirwan, it is not always necessary for the defendant to prove prejudice once delay is egregious—unless the plaintiff first establishes exceptional circumstances that re-engage a balancing exercise.
• Statement of claim / amendment without leave: The document setting out the plaintiff’s case. If a plaintiff changes it substantially, court permission is generally required; otherwise, the “new” pleading may not count procedurally.
• Notice for particulars: A request by the defendant for specific details of the claim; failure to respond is a common marker of non-prosecution.
• Mareva injunction: A freezing order restraining dissipation of assets; here it appeared in correspondence as a threatened step, illustrating the plaintiff’s ability to engage robustly (even if misguidedly) with legal concepts.

5. Conclusion

Dooley v Florentine Properties Ltd and Anor is a clear example of the High Court applying Kirwan v Connors & Ors. [2025] IESC 21: where there is more than five years of total unexplained delay—here far more—the plaintiff must establish truly exceptional circumstances amounting to a pressing exigency of justice. Jordan J held that the plaintiff’s asserted hardships, while real, were not shown to have prevented prosecution of the case, especially given demonstrated capacity to engage in other substantial legal processes. The proceedings were therefore dismissed for want of prosecution, with the court also noting the likelihood of prejudice in an aged, witness-dependent contract dispute.