Emphasising Two-Year Inactivity under Ord. 122, r.11: Adjusting the Primor Strike-Out Test

Introduction

This commentary examines the Supreme Court’s decision in Director of Public Prosecutions v. Noonan ([2025] IESC 21), delivered by Hogan J. on 30 May 2025. The case arose from parallel proceedings between Brendan Kirwan (plaintiff) and a group of defendants including Marguerite Connors (a legal executive) and Eamonn Buttle (and associated entities) concerning alleged property-development agreements and loans dating from 2005–2006. The key issue was whether civil proceedings may be dismissed for want of prosecution under Order 122, rule 11 of the Rules of the Superior Courts, and whether the established “Primor principles” governing inordinate and inexcusable delay require adjustment in light of this rule and evolved practice.

Summary of the Judgment

The Court confirmed that the High Court possesses an inherent jurisdiction to strike out proceedings for undue delay, overlapping with—but not wholly derived from—the statutory rule in Order 122, r. 11.
It emphasised that a two-year period of inactivity (no “proceeding”) by any party raises a presumption that dismissal for want of prosecution is appropriate, subject to displacement by justification.
The three-stage Primor test (inordinate & inexcusable delay + discretionary “balance of justice”) was adjusted to focus first on inactivity beyond two years, making such delay prima facie inordinate and generally inexcusable.
Applying these principles to Kirwan’s case—where the plaintiff took no procedural step for over four years after December 2013—the Court held the delay inordinate, unjustified and warranting dismissal under Ord. 122, r. 11.
The appeal was dismissed, reinforcing the two-year inactivity rule as the primary yardstick for striking out claims for want of prosecution.

Analysis

1. The Inherent Jurisdiction and Order 122, r. 11

The Supreme Court reaffirmed that, independently of rules, courts have an inherent power—rooted in Article 34.1 of the Constitution—to protect the fair and effective administration of justice. Order 122, r. 11, which permits dismissal if no “proceeding” has occurred for two years, is a specific embodiment of that jurisdiction. The rule’s two-year benchmark establishes an objective yardstick for what constitutes inordinate delay.

2. Revising the Primor Principles

Since Primor Plc v. Stokes Kennedy Crowley [1996] 2 IR 459 introduced a three-prong test—(i) inordinate delay; (ii) inexcusable delay; and (iii) balance of justice—the decision‐making practice has become inconsistent and resource-intensive. The Court held that:

Delay beyond two years without a step in the proceedings is automatically inordinate.
This two-year inactivity is prima facie inexcusable, placing the onus on the plaintiff to justify or excuse the delay.
Once inordinate and—in the absence of justification—unexcusable delay are established, dismissal follows unless exceptional circumstances counsel otherwise (e.g., ongoing illness, minority, or case-management alternatives such as “unless” orders).

3. Precedents and Their Influence

Dowd v. Kerry County Council [1970] IR 27: Early recognition of prejudice arising from delay, but with tolerance for re-activation where prejudice dissipates.
O’Domhnaill v. Merrick [1984] IR 151 and Toal v. Duignan [1991] ILRM 135, 140: Development of an exceptional jurisdiction to dismiss even blameless delay where trial fairness is compromised.
Primor [1996] 2 IR 459: Formulation of the three-stage test under the court’s inherent jurisdiction, yet with insufficient reference to Order 122, r. 11’s two-year rule.
Post-Primor jurisprudence (e.g., Anglo-Irish Beef, McBrearty, Stephens v. Flynn): Judicial recognition of the corrosive impact of delay and the need for active case management, but divergent applications of Primor criteria.
Comcast International [2012] IESC 50: Re-affirmation of an inherent jurisdiction distinct from Primor, but emphasising its exceptional nature.
Director of Public Prosecutions v. Noonan [2025] IESC 21: The present case, which adjusted Primor by placing Order 122, r. 11 at its core.

4. Legal Reasoning

The majority held that Ord. 122, r. 11 establishes that two years of inactivity triggers a presumption of dismissal for want of prosecution. Courts “may make such order…as to the Court may seem just,” including case-management measures. Delay beyond this period is “inordinate,” and in the absence of satisfactory excuse—within the plaintiff’s knowledge and control—“inexcusable.” The “balance of justice” inquiry remains part of the review, but now follows from the primary fact of two-year inactivity and the absence of justification.

5. Impact on Future Litigation

Litigants and practitioners must monitor procedural activity closely: any two-year lapse risks dismissal.
Defendants should employ early warning correspondence and, where needed, prompt Ord. 122, r. 11 motions rather than awaiting indefinite delay.
High Court judges will be encouraged to issue “unless” orders or tailored timetables once the two-year mark passes, preserving judicial resources and reducing stale claims.
The Rules Committee may in future amend Order 122, r. 11 to incorporate structured “unless” provisions and clearer guidance on dismissal thresholds.

Complex Concepts Simplified

Inherent Jurisdiction: The non-statutory power of courts, arising from the Constitution, to manage and protect the fairness and efficiency of legal proceedings.
Order 122, r. 11: A procedural rule stating that if no “proceeding” occurs for two years, a defendant may ask the court to dismiss the case for want of prosecution.
Primor Test: Originally a three-step inquiry—(1) inordinate delay; (2) inexcusable delay; (3) whether the balance of justice requires dismissal. Now adjusted to focus first on the two-year inactivity rule.
“Unless” Orders: Case-management directives requiring a party to take specified steps by a deadline or face automatic consequences, including dismissal.

Conclusion

The Supreme Court’s decision in DPP v. Noonan marks a watershed in delay jurisprudence. By placing Order 122, r. 11’s two-year inactivity rule at the heart of the strike-out inquiry, it simplifies and streamlines the law. Delay beyond two years is prima facie inordinate and generally inexcusable, shifting the burden to plaintiffs to justify continued inaction. The balance-of-justice stage remains, but now follows from a clear, rule-based trigger rather than an open-ended judicial discretion alone. This reform restores predictability, conserves judicial resources, and underscores the courts’ duty under Article 34.1 to administer justice expeditiously. Practitioners must heed this new benchmark: procedural vigilance and prompt case management are essential to avoid the guillotine of dismissal for want of prosecution.