Five-Year Inactivity Now “Almost Fatal”: High Court’s Post-Kirwan Clarification in Dennis Guilfoyle Developments Ltd v Wardrop [2025] IEHC 414

1. Introduction

The High Court (Barr J) in Dennis Guilfoyle Developments Ltd v Wardrop has delivered the first detailed application of the Supreme Court’s seminal decision in Kirwan v Connors [2025] IESC 21 to a complex plenary construction dispute involving both a claim (€287k) and a substantial counterclaim (€3 m).

The defendant, Mr Eric Wardrop, sought to strike out the plaintiff’s action for want of prosecution, pointing to more than five years of “total inactivity” after March 2019. The plaintiff resisted, citing COVID-19 disruption, preparatory work “below the waterline”, and the defendant’s corresponding delay in his counterclaim.

The decision squarely addresses:

How the four- and five-year inactivity thresholds introduced by Kirwan operate in practice;
Whether preparatory work, pandemic restrictions, and a defendant’s own delay can excuse a plaintiff; and
The impact of a counterclaim on the court’s discretion to dismiss the principal claim.

2. Summary of the Judgment

Barr J dismissed both the plaintiff’s claim and, on consent, the defendant’s counterclaim. Applying the new Kirwan framework:

Five years’ cumulative inactivity (March 2019–March 2024) triggered the court’s “generous power” to dismiss unless a “pressing exigency of justice” required otherwise.
The claim was dependent on oral evidence (identity of contracting party; workmanship) and thus fell within the heightened prejudice rubric.
Alleged preparatory steps did not constitute “activity”; pandemic obstacles were unconvincing from mid-2020 onward; and the defendant’s age/health added tangible prejudice.
Delay on the part of the defendant, including non-reply to a 2021 letter, was no answer under the post-Kirwan law: plaintiffs bear primary responsibility.

3. Analysis

3.1 Precedents Cited

Kirwan v Connors [2025] IESC 21 (Supreme Court) – laid down the revised test for delay, introducing the 2-, 4- and 5-year “milestones”. Barr J treated it as binding and determinative.
O Domhnaill v Merrick [1984] I.R. 151 – historic authority on prejudice from passage of time; now largely subsumed but still relevant where defendant shows specific prejudice.
Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 – former tripartite test (inordinate, inexcusable delay + balance of justice). Barr J accepts it survives only in attenuated form for “borderline cases”.

3.2 Legal Reasoning

a) Identifying “total inactivity”. The court rejected the plaintiff’s submission that private consultations, briefing counsel, or locating experts qualified as activity. Only visible procedural steps count for the Kirwan clock, unless work under the surface demonstrably prevents visible steps—something the plaintiff failed to prove.

b) Threshold application. Once five years elapsed, the onus shifted decisively: the court “should feel free to dismiss the proceedings unless satisfied that a pressing exigency of justice” required otherwise. No such exigency existed.

c) Prejudice. Although Kirwan de-emphasises prejudice after four years, Barr J still assessed it. The defendant’s advanced age (82) and health (cancer history, diabetes) plus reliance on oral evidence from 2006-09 created manifest prejudice.

d) Defendant’s own delay. Citing the Chief Justice’s comments that plaintiffs and defendants are not co-adventurers, the judge dismissed arguments that the defendant’s delay or counterclaim neutralised the plaintiff’s default.

3.3 Impact of the Judgment

Post-Kirwan bedding-in: This is the first High Court judgment to operationalise the five-year rule, confirming that dismissal will be the norm unless exceptional factors exist.
Preparatory work defence weakened: Parties cannot rely on “below the waterline” activity unless they show it objectively prevented procedural steps.
COVID-19 mitigation limited: Courts will scrutinise pandemic-related excuses; by mid-2020 remote facilities negate most justifications.
Counterclaims won’t rescue the main claim: A defendant’s willingness to have his counterclaim dismissed clears the path for striking out the plaintiff’s action.
Practical guidance: Practitioners must docket and execute at least one procedural step every two years; after three to four years, active case-management motions (discovery, witness summons, trial date) become essential.

4. Complex Concepts Simplified

“Want of prosecution” – a defendant asks the court to dismiss a plaintiff’s case because the plaintiff has not moved it along with reasonable speed.
“Inordinate and inexcusable delay” – legal shorthand for a delay that is both excessive and unjustified. The Supreme Court in Kirwan simplified this by tying “excessive” to specific timeframes (2, 4, 5 years).
Counterclaim – the defendant’s separate claim against the plaintiff within the same proceedings; procedurally independent, it can survive or fall irrespective of the main claim.
“Total inactivity” – no formal, docketed step such as pleadings, motions, discovery, or notice of trial. Informal negotiations or internal file work do not stop the clock.
Kirwan Milestones – 0-2 yrs: dismissal rare; 2-4 yrs: dismissal possible if additional prejudice proven; 4-5 yrs: dismissal likely if oral evidence required; ≥5 yrs: dismissal unless “pressing exigency of justice”.

5. Conclusion

Dennis Guilfoyle Developments Ltd v Wardrop cements the message from Kirwan: five years’ silence is effectively fatal to a plaintiff’s claim, even in technically complex, expert-heavy construction litigation and despite pandemic disruption. Barr J’s rigorous approach signals a culture shift toward strict timeliness and offers clear road-maps for both plaintiffs and defendants:

Visible procedural activity, not back-office preparation, is required to keep a claim alive.
Pandemic or other societal events will excuse delay only where they demonstrably made procedural steps impossible.
Defendant delay and counterclaims carry limited weight; responsibility for momentum rests squarely on plaintiffs.

The ruling therefore serves as a potent warning: in the post-Kirwan era, litigants who allow their claims to stagnate beyond four years—let alone five—must show truly compelling reasons, or face dismissal.