Full and Frank Disclosure in Delay Motions and the Post‑Kirwan Framework: Commentary on Bank of Ireland Mortgage Bank Unlimited Company v Lawlor & Anor [2025] IEHC 617

1. Introduction

This commentary examines the judgment of Nolan J in Bank of Ireland Mortgage Bank Unlimited Company v Lawlor & Anor [2025] IEHC 617, delivered on 12 November 2025 by the High Court of Ireland. The decision sits at the intersection of two important strands of Irish civil procedure:

• the long-standing O’Domhnaill v Merrick jurisprudence on dismissal for delay based on risk of an unfair trial; and
• the newly articulated Supreme Court framework in Kirwan v Connors & Others [2025] IESC 21 on want of prosecution under Order 122, rule 11.

The case arose out of three loan facilities advanced by Bank of Ireland Mortgage Bank (the “Bank”) to the defendants, Ian and Ria Lawlor, in 2004–2006, relating to investment properties. The loans fell into default around 2009–2010. The Bank ultimately issued summary proceedings in 2019 to recover approximately €1.27 million.

The defendants applied in 2024 to dismiss the proceedings for delay and/or want of prosecution. Their argument relied on:

• Pre‑litigation delay: invoking the O’Domhnaill principles on unfair trial due to the passage of time; and
• Post‑litigation delay: relying on Order 122, rule 11 and the evolving delay jurisprudence, now reshaped by Kirwan.

Two features make this judgment particularly noteworthy:

1. The express invocation of a duty of “uberrimae fidei” (utmost good faith) in applications seeking discretionary relief for delay, effectively importing an insurance-law concept into procedural law; and
2. The first-wave application at High Court level of the post‑Kirwan framework on inactivity thresholds (two, four, and five years) and the centrality of time itself as a ground for dismissal.

The judgment thus provides both substantive guidance on how delay applications will be approached after Kirwan, and a procedural warning about the consequences of incomplete or misleading affidavits when seeking to invoke the court’s discretion.

2. Summary of the Judgment

2.1 The application

The defendants moved to dismiss the Bank’s 2019 summary proceedings on two principal bases:

1. Pre‑litigation delay / unfair trial: They argued that the long passage of time, and in particular the alleged reliance on an oral agreement in 2012–2013 with a Bank official (Mr Frank Fitzpatrick), meant that memories had faded, documents were lost, and a fair trial was no longer possible. They sought relief under the O’Domhnaill v Merrick line of authority.
2. Post‑litigation delay / want of prosecution: They contended that the Bank’s failure to promptly prosecute the summary proceedings since 2019 – especially taking account of COVID‑19 and multiple solicitor changes – amounted to inordinate and inexcusable delay warranting dismissal under Order 122, rule 11, as now understood post‑Kirwan.

2.2 The Court’s main conclusions

Nolan J refused the application to dismiss on all grounds, holding in essence that:

• O’Domhnaill principles not satisfied: Although there had been a significant passage of time, there was extensive documentary evidence and consistent pleading of the alleged oral agreement. Against that background, the defendants had not established the “real and substantial risk of an unfair trial” required to strike out the proceedings.
• Affidavit omissions were serious: The defendants’ sworn averments that they heard “nothing” from the Bank for more than five years were directly contradicted by contemporaneous correspondence and by an SFS (Standard Financial Statement) in 2015 acknowledging their indebtedness. This failure to disclose material correspondence was described as a “very serious omission”, undermining their entitlement to discretionary relief.
• Uberrimae fidei in discretionary applications: Where the court is asked to exercise a discretion (such as dismissal for delay), the principle of uberrimae fidei should apply: all relevant information must be put before the court. Failure to do so weighs against the moving party.
• Post‑litigation delay did not reach the Kirwan dismissal threshold: While there had been delay, there was not a period of “total inactivity” of two years or more as required by Kirwan for the enhanced dismissal jurisdiction to arise. Nor was there an abuse of process or O’Domhnaill‑level prejudice.
• However, strict case management may be imposed: Applying Kirwan, even where dismissal is refused, the court is entitled to make strict case management directions and warn that non‑compliance may itself justify dismissal.

Accordingly, the motion to dismiss was refused. At the close of the judgment, the Court indicated that it would hear the parties on the precise form of case‑management order to be made (para. 49).

3. Factual Background and Chronology

3.1 Loan facilities and default

• In 2004, 2005 and 2006, the Bank advanced approximately €1,285,000 to the defendants to fund property investments including:
  • 80 Crumlin Road, Dublin (“Crumlin Road”); and
  • 29 North Brunswick Street, Stoneybatter, Dublin (“Stoneybatter”).
• The loans fell into default in or about 2009–2010, in the aftermath of the 2008 financial crash.

3.2 The alleged 2012–2013 oral agreement

The defendants’ substantive defence to the Bank’s claim hinges on an alleged oral agreement in 2012–2013 with a bank official, Mr Frank Fitzpatrick. They contend that:

• They negotiated with Mr Fitzpatrick in relation to a number of properties.
• They subsequently sold various properties and remitted the net proceeds to the Bank.
• They were (they say) told that if those sales were completed and the proceeds remitted, the Bank would not pursue them for any residual debt across their Bank of Ireland liabilities, including the loans now sued upon.
• They claim that Mr Fitzpatrick said the Bank “would not agree in writing” that all liabilities were fully and finally settled but would nonetheless agree not to pursue any residual debt.

The Bank categorically denies that any such global settlement was agreed and points to correspondence and documents which it says contradict the alleged oral agreement.

3.3 Pre‑litigation chronology

The Court set out in some detail a pre‑litigation chronology, which was central to its rejection of the defendants’ narrative that nothing had occurred for over five years:

• 5 December 2012: Following negotiations with Mr Fitzpatrick, the Bank agreed arrangements concerning three other properties (not the ones now in issue) and agreed to provide sealed discharges upon receipt of sale proceeds.
• 4 September 2013: The defendants wrote to the Bank acknowledging that, notwithstanding the sale of Crumlin Road, they remained liable for all residual outstanding sums due on foot of the relevant mortgage.
• 20 March 2014: The Bank wrote pointing out that a small balance remained due on the Crumlin Road mortgage and proposing to write off roughly €8,000 in return for payments of €50/month for 11 months. The defendants did not take up this offer.
• 13 August 2015: The first-named defendant wrote to Mr Fitzpatrick enclosing a Standard Financial Statement (SFS) signed by both defendants. In this SFS:
  • The defendants acknowledged debts to the Bank totalling €1.75 million.
  • Their total indebtedness to all institutions exceeded €3.5 million.
• 1 December 2015: The Bank wrote a demand letter seeking payment of €1,136,47 (presumably €1,136,047, the total of the three loans).
• 24 March 2017: The Bank wrote a detailed letter regarding the outstanding mortgage accounts, seeking updated financial information so that an informed review could be undertaken.
• 7 April 2017: The defendants wrote to the Bank (to Mr Vaughan):
  • They said they were compiling a statement of income.
  • They thanked Mr Vaughan for his assistance.
  • They referred to “successful dealings” with Mr Fitzpatrick in relation to “our other Bank of Ireland mortgages which was a larger debt amount” and expressed hope of resolving “matters in this case”.

Against this documentary background, the defendants’ later averments that they had heard “nothing from Bank of Ireland for a period of over 5 years” became highly problematic.

3.4 Defendants’ affidavit averments and the Court’s concern

In his affidavit, the first-named defendant averred (paras. 16 and 18):

“We proceeded to sell the various properties in late 2012 and remitted the net proceeds to Bank of Ireland. Having done so we were relieved that we had settled all of our liabilities to Bank of Ireland and could move on with our lives. Thereafter we heard nothing from Bank of Ireland for a period of over 5 years… It therefore came as a complete shock to us in August 2018 when the Plaintiff purported to demand payment of us in the total sum of €1,174,091.70”.

The Court found this to be, at minimum, deeply misleading:

• It omitted reference to the 2013, 2014, 2015 and 2017 correspondence, including the SFS acknowledging substantial indebtedness.
• The sworn narrative that there had been “nothing” from the Bank for over five years was “simply not true”.
• The Court described the omission as a “very serious omission” (para. 15) and underscored that the defendants were inviting the Court to exercise a discretion without disclosing all material facts.

This omission played a crucial role in the Court’s rejection of the defendants’ delay-based applications.

3.5 Litigation chronology

On the post‑litigation side, the key dates were:

• 17 April 2019: Summary summons issued but not immediately served.
• April 2019 – January 2020: Ongoing correspondence between solicitors; the Bank agreed to withhold service to facilitate engagement.
• 3 January 2020: Summons served on the defendants’ solicitors.
• 22 January 2020: Defendants entered an appearance.
• March 2020: COVID‑19 pandemic causes severe disruption; the Bank admits that many such files (including this one) were effectively put “on hold”.
• November 2021: Notice of change of solicitor for the Bank and a Notice of Intention to Proceed filed and served.
• March 2022: Motion to amend the summons (in light of Bank of Ireland v O’Malley [2019] IESC 84) is issued and served.
• 21 June 2022: Order granting amendment made.
• October 2022: Further notice of change of solicitor.
• December 2022: Another change of solicitor after the defendants’ solicitors raised an issue of conflict; new solicitors appointed and a further Notice of Intention to Proceed is served.
• 13 February 2024: The Bank issues a motion for summary (final) judgment.
• 3 April 2024: The defendants issue the present motion to dismiss for delay.

4. Legal Framework and Precedents

4.1 The O’Domhnaill principles: unfair trial through lapse of time

The “O’Domhnaill principles” derive from O’Domhnaill v Merrick and subsequent authorities. In this judgment, Nolan J summarised them as focusing on whether the passage of time has created a “real and substantial risk of an unfair trial” (para. 19). Key elements are:

1. Inordinate delay: Has the delay gone beyond what would be reasonable in all the circumstances?
2. Inexcusable delay: Is there a reasonable or adequate explanation for that delay? If not, the delay is “inexcusable”.
3. Resultant prejudice: Has the delay resulted in prejudice to the defendant such that a fair trial is no longer realistically possible?

In exercising these “potentially draconian” powers to dismiss, courts must balance:

• the plaintiff’s right of access to the courts and to pursue its claim; and
• the defendant’s right to a fair trial, which may be compromised by lost evidence, faded memories, and the like.

The judgment notes that courts may also consider:

• Acquiescence by the defendant (conduct indicating tolerance or acceptance of delay); and
• Inability of the plaintiff (e.g. infancy, incapacity) to control or end the delay.

Illustrative authorities cited include:

• Comcast International Holdings Inc. v Minister for Public Enterprise [2007] IEHC 297;
• Manning v Benson and Hedges Ltd [2004] IEHC 316; and
• Gorman v The Minister for Justice, Equality and Law Reform [2015] IECA 41.

4.2 Gorman and the fragility of evidence over time

In Gorman, Irwin J (as she then was) observed that the greater the lapse of time between the event and the hearing, the more fragile and unreliable evidence becomes. This is “a particular concern in cases where there was no documentary or other objective evidence to support a claim where there is conflicting oral testimony” (para. 22).

That dictum was central to the defendants’ argument: they sought to characterise the case as turning primarily on oral evidence about discussions with Mr Fitzpatrick. Nolan J, however, distinguished the present case on the basis that there is extensive documentation.

4.3 The Kirwan framework: time as prejudice in itself

The most significant doctrinal development for this judgment is Kirwan v Connors & Others [2025] IESC 21. Nolan J describes Kirwan as:

• a “game changer” or significant shift towards a more practical and usable method of analysing delay;
• a refinement and simplification of previously complex and “convoluted” jurisprudence, notably the old Primor test.

Quoting the Chief Justice (paras. 32–33 of the judgment), the Court highlights several key propositions:

1. No constitutional presumption against dismissal
   Once it is accepted that rules providing for dismissal for want of prosecution do not themselves impermissibly interfere with the constitutional right of access to the courts, there is:

   “no constitutional issue and the Constitution does not require any presumption in favour of the claim or against dismissal.”

2. Passage of time is important “in and of itself”
   The law should recognise that:

   “passage of time is important in and of itself, and can justify dismissal of a claim, without more.”

   Greater weight is to be given to time as a factor, and the Chief Justice endorses a framework centred on periods of complete inactivity.

The Court summarises the Kirwan structure as follows:

• (i) Before 2 years of total inactivity
  A claim should only be dismissed if:
  • it is an abuse of process; or
  • there is prejudice to the defendant of the kind required under the O’Domhnaill jurisdiction (i.e. real risk of an unfair trial).
• (ii) After 2 years of total inactivity
  A claim may be dismissed for want of prosecution. Typically, dismissal is more likely where the defendant can show:
  • additional prejudice; or
  • other factors pointing towards dismissal.
  Even where the court does not dismiss, it is “entitled to make strict case management directions”, with non‑compliance itself justifying dismissal.
• (iii) After 4 years of total inactivity
  If the case is dependent on oral evidence such that the defendant is exposed to the risk of failing recollections and witness reluctance, the claim should be dismissed unless the plaintiff can show “compelling reasons” why it should proceed. Time at this level is sufficient in itself; specific additional prejudice simply strengthens the case for dismissal.
• (iv) After 5 years of total inactivity
  The court has a “generous power” to dismiss and should feel free to do so unless there is a “pressing exigency of justice” requiring a trial – for example, where:
  • the plaintiff faced serious educational, social or economic disadvantage;
  • exceptional public law issues arise in the public interest; or
  • there has been serious misconduct by the defendant.

Crucially, the Chief Justice emphasised that the test is not “mechanical”; it remains a matter for judicial judgment in individual cases. But the aim is to provide a clear and workable framework that:

• highlights the significance of lapse of time;
• uses periods of “total inactivity” as milestones; and
• enables more efficient resolution of delay applications, without protracted hearings or appeals.

4.4 Other authorities cited

• Bank of Ireland v O’Malley [2019] IESC 84: This prompted the Bank’s motion to amend the summons in 2022. Although the High Court does not elaborate on the substance of O’Malley, it is known as a key Supreme Court decision on proper pleading and proof in bank debt enforcement actions. Nolan J accepted that amending in light of O’Malley was a “prudent” step, though one that could have been taken earlier.
• Bank of Ireland v Wilson [2020] IEHC 646: Barr J’s observation (para. 40) is adopted: where a plaintiff elects to use the summary procedure, they are expected to proceed relatively quickly; expedition is “of the essence” of such proceedings. Nolan J endorses this expectation and uses it to criticise aspects of the Bank’s delay.
• Gilchrist v Sunday Newspapers Ltd [2017] IESC 18: O’Donnell J (as he then was) observed that litigation is “a robust business” and “intrinsically linked to stress and anxiety.” Nolan J uses this dictum to dismiss the defendants’ reliance on the stress and anxiety caused by the proceedings as a basis for dismissal.

5. The Court’s Legal Reasoning

5.1 Pre‑litigation delay and the O’Domhnaill jurisdiction

5.1.1 Defendants’ argument

The defendants argued that:

• The case would “turn on oral testimony” – especially their own and that of Mr Fitzpatrick, concerning alleged settlement discussions in 2012–2013.
• The lapse of more than a decade since those events risked:
  • seriously diminished memories; and
  • unavailability of records (the first-named defendant claimed to have lost records due to changing his computer).
• As a result, there was a real and substantial risk of an unfair trial, satisfying the O’Domhnaill test for dismissal.

5.1.2 Availability of documentary evidence

Nolan J rejected the characterisation of the case as one resting solely, or even primarily, on potentially unreliable oral testimony. He pointed out:

• The Bank’s affidavit exhibited a substantial body of documentary records covering the relevant period.
• These included letters from 2012, 2013, 2014, 2015 and 2017, as well as the SFS acknowledging significant debt – documents that bear directly on the defendants’ alleged understanding that all liabilities had been settled.
• Even though the defendants themselves did not exhibit much documentation, it was clear from the Bank’s material that such evidence exists and will be available at trial.

In the context of Gorman, this was decisive: Gorman’s concern is most acute where there is no documentary anchor. Here, there is.

5.1.3 Consistency and specificity of the defendants’ own account

Paradoxically, the defendants’ own affidavits, directed to the alleged 2012–2013 agreement, undermined their claim of prejudice:

• The first-named defendant gave a highly specific account of Mr Fitzpatrick’s alleged representations, including that:

  “He told us that the Bank would not agree in writing that all our liabilities to it where fully and finally settled but it would agree not to pursue us for the residual debt on our liabilities to it.”

• The Court noted that:
  • this narrative appeared vivid and detailed;
  • it was said to be corroborated by the co‑defendant (his wife) and their solicitor; and
  • this narrative had been consistently advanced from the time proceedings were threatened and issued.

On that basis, Nolan J found it “very hard to identify what prejudice, along the lines enunciated in the O’Domhnaill principles, arise” (para. 25).

5.1.4 Uberrimae fidei and omissions in the defendants’ affidavits

The turning point in the O’Domhnaill analysis was the Court’s reaction to the defendants’ omission of key correspondence. As noted above:

• The defendants had sworn that they heard “nothing from Bank of Ireland” for over five years after 2012.
• The Bank’s exhibited letters and the SFS in 2015 directly contradicted this.
• Nowhere in the defendants’ affidavits was there mention of that SFS or the 2015/2017 letters.

The Court’s characterisation of this was strong:

• “This seems to me to be a very serious omission.” (para. 15)
• “Sworn testimony in the affidavits is clearly contradicted by the correspondence. That too, is a very serious matter.” (para. 15)

Nolan J then articulated a broader principle (para. 16):

“It seems to me, that where a court is being asked to exercise a discretion, the principle of uberrimae fidei should apply. All relevant information should be before the court; otherwise, the discretion, which is being requested, may be procured without the court having the full benefit of all relevant facts.”

This is a significant statement: although applications to dismiss for delay are already recognised as discretionary, the explicit importation of the concept of “uberrimae fidei” (a term usually associated with insurance contracts and certain fiduciary contexts) gives added weight to the duty of candour and completeness in affidavits supporting procedural motions.

On this basis, even if the Court had been inclined to find some prejudice, the defendants’ failure to put all relevant facts before the Court would have “to go against them” when exercising discretion (para. 26).

5.1.5 Conclusion on O’Domhnaill

The Court concluded:

• This was not a case where the O’Domhnaill principles availed the defendants.
• There was ample documentary evidence; the defendants’ own recollection appeared specific and consistent; and the alleged loss of some records (due to a changed computer) was insufficient.
• Even if the Court’s analysis of prejudice were wrong, the failure of full disclosure in the affidavits would, in any event, justify refusing discretionary relief.

5.2 Post‑litigation delay, Order 122 r.11 and the Kirwan template

5.2.1 The defendants’ submissions

On post‑litigation delay, the defendants contended that:

• There had been inordinate and inexcusable delay since the initiation of the proceedings in April 2019.
• The Bank had failed to prosecute a summary claim with the speed that the summary procedure demands, particularly between:
  • service in January 2020,
  • the onset of COVID‑19,
  • the late 2021/2022 procedural steps, and
  • the eventual motion for summary judgment in February 2024.

5.2.2 The Bank’s submissions

The Bank responded that:

• There had never been any continuous period of “total inactivity” of two years or more – the threshold identified by Kirwan for the enhanced dismissal jurisdiction to be engaged.
• Periods of apparent delay were:
  • occupied by ongoing engagement and correspondence between solicitors;
  • significantly affected by COVID‑19 and practical disruption; and
  • complicated by necessary solicitor changes and the need to consider amendment in light of O’Malley.
• The defendants had not identified any specific evidence that would have been available earlier but is now unavailable.

5.2.3 COVID‑19 and the “world stood still” argument

Nolan J did not fully accept the Bank’s implicit suggestion that the COVID‑19 pandemic could be treated as suspending obligations for the entire period March 2020 – late 2021:

• He accepted that there was “severe disruption” for the first six months or so.
• However, thereafter, while lockdowns and disruptions continued for parts of the economy, banks and courts continued to operate.

The Court therefore took a more nuanced approach:

• COVID‑19’s impact was recognised as significant between March 2020 and roughly November/December 2020;
• Beyond that, delay could not simply be excused on the basis that “the world stood still”.

5.2.4 Summary proceedings and the expectation of speed

The Bank’s choice of a summary procedure was relevant. As Barr J had observed in Bank of Ireland v Wilson [2020] IEHC 646 (para. 40), which Nolan J expressly endorsed:

“Where the plaintiff has elected to pursue a summary form of proceedings, he will be expected to proceed with his action relatively quickly, as that is the essence of an action provided for under the summary procedures provided for in the Rules of the Superior Courts.”

Nolan J noted that certain delays (notably in transferring the file to new solicitors and the time taken to decide on the “appropriate course of action” after proceedings were already initiated) were difficult to justify in the context of summary proceedings whose essence is expedition.

5.2.5 Application of the Kirwan thresholds

The crucial analytical move was to apply the Kirwan template to the actual chronology of steps taken. The Court concluded:

• There had been delay (the proceedings were now about six years old, from 2019 to late 2025).
• However, there had been “just about” sufficient activity on the part of the Bank to avoid any single period of two years of total inactivity (para. 46).

This conclusion is critical. Under Kirwan:

• If no period of two years’ total inactivity has occurred, dismissal can only be ordered where:
  • the claim is an abuse of process; or
  • there is prejudice at the O’Domhnaill level (real and substantial risk of unfair trial).

Nolan J then addressed these residual grounds.

5.2.6 Abuse of process and prejudice

The Court found:

• No abuse of process was apparent:
• Although there had been periods of sluggish progress, they did not approach the deliberate or egregious conduct typically associated with an abuse of process.
• The level of prejudice required under O’Domhnaill was not made out:
  • The defendants’ argument largely repeated their pre‑litigation prejudice claim, which the Court had already rejected.
  • No specific vital evidence was shown to have been lost due to delay.

Accordingly, the two residual bases for dismissal in the pre‑two‑year‑inactivity category (Kirwan (i)) were not satisfied.

5.2.7 Later Kirwan categories (4‑year and 5‑year inactivity)

The Court briefly noted that the later Kirwan categories – four and five years of total inactivity – were not even engaged:

• The proceedings did not feature a continuous four‑year or five‑year period during which the Bank did absolutely nothing.
• Even if such a threshold had been reached, the Court indicated it would have expected “additional prejudice or other factor pointing towards dismissal,” which had not been demonstrated.

Time itself is a form of prejudice under Kirwan, but here the lapse of time did not reach the inactivity levels that trigger the presumptive dismissal categories.

5.2.8 Stress and anxiety

The defendants emphasised the stress and anxiety caused by the prolonged litigation. Nolan J responded by citing Gilchrist v Sunday Newspapers Ltd [2017] IESC 18, where O’Donnell J observed that litigation is “a robust business” and “intrinsically linked to stress and anxiety” (para. 44).

While not dismissing the reality of stress, the Court treated it as an unavoidable incident of litigation and insufficient, on its own, to warrant dismissal.

5.2.9 Outcome on delay

In the end, the Court held (paras. 46–48):

• There had undoubtedly been delay since 2019.
• However, because there had not been two years of total inactivity, the stricter Kirwan dismissal presumptions did not apply.
• The case was not an abuse of process, and no O’Domhnaill-level prejudice was shown.
• Therefore, the threshold for dismissal had not been reached.

5.3 Strict case management directions

Although dismissal was refused, Nolan J picked up on the explicit suggestion in Kirwan (category (ii)) that where delay has brought a case close to the two‑year inactivity threshold, the court may – and indeed should – adopt:

• strict case-management directions, with the stated warning that non‑compliance would itself justify dismissal in due course.

The judge concluded (para. 48):

“I believe that I am entitled to make strict case management directions on the basis that non‑compliance with such directions would itself justify dismissal.”

He then indicated (para. 49) that he would hear the parties on the nature of the order to be made. This signals a more proactive, managerial approach to delayed litigation, consistent with the ethos of Kirwan.

6. Simplifying Key Legal Concepts

6.1 Dismissal for “want of prosecution”

“Want of prosecution” refers to a situation where a plaintiff starts a case but then fails to take the necessary steps to progress it within a reasonable time. The defendant can ask the court to:

• dismiss the claim entirely; or
• in some cases, impose conditions or case management directions.

This power exists to protect defendants from being kept in indefinite litigation limbo and to uphold the integrity and efficiency of the justice system.

6.2 Abuse of process

An “abuse of process” is serious misconduct within litigation – using court proceedings for an improper purpose or in a way that is fundamentally unfair. Examples include:

• pursuing a claim that is vexatious or hopeless purely to harass a defendant;
• manipulating procedures to cause delay or gain unfair tactical advantage;
• repeatedly re‑litigating the same issues without justification.

If delay is part of such conduct, the court can strike out the case as an abuse of process even without a formal two‑year inactivity period.

6.3 The O’Domhnaill “unfair trial” test

Under O’Domhnaill and its progeny, a court will dismiss a claim where:

1. There has been very substantial delay.
2. The delay is inexcusable (no adequate justification).
3. The effect of that delay is such that a fair trial is no longer realistically possible – for example, because:
   • critical documents have been lost;
   • key witnesses have died or cannot be found;
   • memories have faded so much that the court cannot confidently find facts.

The threshold is high because dismissal is a “draconian” measure: it permanently shuts the plaintiff out from having its claim tried.

6.4 Uberrimae fidei (utmost good faith) in procedural applications

Uberrimae fidei literally means “of the utmost good faith.” Traditionally, it is associated with:

• insurance contracts, where insured parties must disclose all material facts to the insurer; and
• certain fiduciary contexts (e.g., trustees, partners).

In this judgment, Nolan J extends the principle to discretionary procedural applications such as motions to dismiss for delay. The core idea is straightforward:

• If a party asks the court to exercise a discretion in its favour, it must put all relevant information before the court.
• It must not omit significant documents or events that cut against its narrative.
• If it does, the court may refuse the relief sought, regardless of the underlying merits.

Although courts have long insisted on candour and completeness in affidavit evidence, the explicit invocation of uberrimae fidei emphasises that:

• there is a heightened duty of candour when seeking discretionary relief; and
• failure to meet that standard is itself a powerful discretionary factor against granting the relief.

6.5 Summary proceedings and summary judgment

“Summary proceedings” (here by summary summons) are a streamlined procedure used where:

• the plaintiff claims a liquidated sum (e.g. a specific debt); and
• the plaintiff contends that the defendant has no defence (or only a shadowy one).

The plaintiff may apply for “summary judgment” – a quick judgment without a full trial – if the court is satisfied there is no fair or reasonable probability of a real defence. Because this process bypasses many stages of full plenary litigation, courts expect:

• that plaintiffs will act with particular expedition; and
• that defendants will be able to show a bona fide and “arguable” defence to resist summary judgment.

In this case, the Bank chose to proceed summarily but then proceeded slowly – a misalignment that attracted judicial criticism, though not (yet) dismissal.

6.6 Case management directions

“Case management” refers to the court taking active control of the progress of a case. Directions can include:

• deadlines for delivering affidavits, defences, replies;
• timetables for discovery, witness statements, and expert reports;
• fixing hearing dates.

Under Kirwan, once the two‑year inactivity threshold is approached or breached, a court that decides not to dismiss may nonetheless:

• impose strict case management directions;
• indicate that non‑compliance with these directions will itself provide a sufficient basis for dismissal.

Nolan J’s intention to do just that illustrates a more robust, managerial style of judicial supervision of delayed cases.

7. Impact and Significance

7.1 Consolidating Kirwan at High Court level

This decision is one of the first detailed High Court applications of the Supreme Court’s framework in Kirwan v Connors. It confirms several key points for practitioners:

• Two years of total inactivity is a “critical milestone” but not a magical number – what matters is actual inertia in progressing the case, not simply the passage of calendar time since issue.
• Where there has not been two years of total inactivity, courts will be slower to dismiss, and will demand either:
  • abuse of process; or
  • O’Domhnaill‑type prejudice.
• However, courts may still impose strict case-management regimes in borderline cases, laying the groundwork for later dismissal if orders are ignored.

For litigants, this clarifies that mere delay, without clear periods of absolute inactivity and without demonstrable prejudice, will not automatically lead to dismissal – but it will increasingly attract tight judicial supervision.

7.2 Heightened duty of candour in delay applications

The most striking doctrinal move is the application of uberrimae fidei to procedural motions. The practical consequences are substantial:

• Defendants seeking to dismiss a claim for delay must:
  • carefully comb their records; and
  • disclose all significant communications and documents with the plaintiff bearing on delay and prejudice.
• Affidavit evidence that is incomplete, selective, or contradicted by contemporaneous documents will:
  • substantially undermine the credibility of the movant; and
  • make it much harder to secure discretionary relief.

This will likely influence how practitioners draft affidavits in all manner of discretionary applications (not just delay motions), prompting:

• more cautious and balanced presentations of the factual history; and
• more frequent use of comprehensive exhibit books to avoid accusations of omission.

7.3 Implications for lender‑borrower litigation

In the specific context of bank enforcement proceedings:

• Borrowers frequently rely on alleged oral agreements or informal settlements with bank officials. This case suggests courts will:
  • scrutinise such claims closely against the documentary record (letters, SFS forms, emails, etc.);
  • view ongoing acknowledgements of debt as powerful evidence that borrowers did not regard their liabilities as extinguished.
• Where borrowers assert that they believed all debts were settled and that later demands came as a “complete shock”, courts will test these assertions rigorously against any:
  • letters acknowledging continuing liability;
  • financial statements listing the debt as due.

For banks, the decision is a reminder that:

• summary proceedings must be pursued with genuine expedition – solicitor changes and internal forbearance policies will not, by themselves, justify long periods of inactivity;
• nonetheless, where they can show periodic activity (letters, notices to proceed, motions to amend), they may avoid crossing the two‑year inactivity threshold in Kirwan.

7.4 COVID‑19 and delay

The judgment also hints at how Irish courts are likely to treat COVID‑era delay:

• There is recognition that the first six to nine months of the pandemic involved genuine and serious disruption.
• However, beyond that, parties cannot simply invoke COVID‑19 as a blanket excuse; banks and courts continued to function, and some progress was possible.

Lawyers should therefore avoid treating the pandemic as an all‑purpose explanation and instead:

• link specific delays to specific restrictions or operational impacts; and
• demonstrate steps taken to move cases forward where feasible.

7.5 Stress, anxiety and the “robust business” of litigation

By citing Gilchrist, Nolan J reinforces the message that:

• Stress and anxiety, while real, are an inherent part of litigation.
• They cannot, without more, ground an application to dismiss a case for delay.

Defendants will therefore need to point to concrete prejudice (loss of evidence, impairment of a fair hearing) rather than rely on the emotional toll of being sued.

8. Conclusion

Bank of Ireland Mortgage Bank Unlimited Company v Lawlor & Anor [2025] IEHC 617 is an important High Court judgment for at least three reasons:

1. Clarifying the Post‑Kirwan Landscape
   It operationalises the Supreme Court’s Kirwan framework, confirming that:
   • two years of total inactivity is a gateway threshold for enhanced dismissal powers;
   • below that threshold, dismissal will still require either abuse of process or an O’Domhnaill‑type risk of unfair trial;
   • even where dismissal is refused, courts will increasingly use strict case management tools to control sluggish litigation.
2. Reinforcing the Stringent Nature of O’Domhnaill Prejudice
   The judgment confirms that:
   • The mere passage of time and general fading of memories are not enough, especially where there is significant documentary evidence.
   • Where parties give specific, detailed recollections of alleged oral agreements and assert that witnesses remain available, it is hard to establish a “real and substantial risk” of an unfair trial.
3. Elevating the Duty of Candour via Uberrimae Fidei
   By explicitly invoking uberrimae fidei in the context of discretionary procedural applications, Nolan J:
   • underscores that parties seeking relief such as dismissal for delay must place all relevant facts before the court;
   • signals that omissions or misleading affidavits may themselves justify refusal of relief, even where some underlying delay or prejudice exists.

For future delay motions, the case stands as both a doctrinal guide and a cautionary tale. It shows how courts will:

• apply Kirwan in a structured, time‑based manner;
• scrutinise claims of prejudice through the lens of the documentary record; and
• insist on complete, candid affidavit evidence before exercising discretionary powers.

Within the broader Irish legal landscape, Lawlor contributes to a clearer, more principled approach to delay, blending the historic protection of fair trial rights under O’Domhnaill with a modern, time‑sensitive framework under Kirwan, and reinforcing a high standard of procedural integrity through the principle of utmost good faith.