Heightened Application of Kirwan Delay Principles to Appeals:
Commentary on O'Kelly (Estate of O'Kelly) v McGovern (Estate of McGovern) [2025] IEHC 704

1. Introduction

This commentary examines the decision of Barr J in the High Court in Grellan O'Kelly (as personal representative of the estate of Marie Lucy O'Kelly) v Niall McGovern (as personal representative of the estate of Raymond McGovern) [2025] IEHC 704, an appeal from the Circuit Court concerning possession of residential property at 46 Jamestown Road, Inchicore, Dublin.

The judgment is procedurally significant for Irish civil litigation, and particularly for appellate practice, because it:

Explicitly applies the Supreme Court’s new framework on delay in Kirwan v Connors [2025] IESC 21 to appellate proceedings; and
States that the Kirwan test should be applied “with greater stringency” in the context of appeals, where the respondent already holds a judgment.

The case also clarifies:

The irrelevance of a respondent’s failure to advance an appeal in assessing delay;
The effect of substitution of parties on standing to rely on an existing judgment; and
The limited role of parallel or collateral litigation when the court is asked to dismiss an appeal for want of prosecution.

The core issue before the High Court was whether a long-dormant Circuit Court appeal – where nothing had been done for over twenty years, and where both original parties had since died – should be struck out for want of prosecution and delay.

2. Factual and Procedural Background

2.1 The Property and Underlying Dispute

The premises in dispute is 46 Jamestown Road, Inchicore, Dublin, comprised in folio 2845L (the “property”). The property was originally owned by Charles McGovern, who made a will on 22 February 1967 and died in 1970.

Under the will, after valuing the trust fund:

Two-thirds of the trust fund were to pass absolutely to the testator’s daughter, Marie Lucy O’Kelly (the original plaintiff); and
One-third was to be transferred to the Commissioners of Charitable Donations and Bequests for Ireland, to hold on trust for St Joseph’s Young Priests Society.

After the death of the testator’s wife in 1971, several of the McGovern siblings – including the original defendant, Raymond McGovern – continued to live in the property. Over time, all left except Raymond, who remained in occupation for about twenty years prior to the issuing of proceedings.

The original plaintiff alleged that she had permitted her brother to occupy the property under a licence in order to maintain family relations; she did not accept that he had any proprietary entitlement to remain.

Around 2000, Dublin Corporation notified the plaintiff that, given the condition of the property, it proposed to act under the Derelict Sites Act 1990. When the defendant would not vacate, the plaintiff issued ejectment proceedings by way of an equity civil bill on 8 June 2001, seeking possession of the property.

2.2 The Circuit Court Proceedings and Default Judgment

8 June 2001: Equity civil bill issued: “Marie Lucy O’Kelly v Raymond McGovern”. The pleading stated that:
- She sued in her own right; and
- In the alternative, she acted as executor and trustee of the will of Charles McGovern.
19 October 2001: Civil bill served on the defendant.
23 November 2001: Plaintiff issued motion for judgment in default of appearance, returnable on 3 December 2001.
3 December 2001: Defendant failed to attend; motion adjourned to 17 December 2001. Plaintiff wrote to him on 5 December 2001, giving notice of the adjourned date.
17 December 2001: Defendant again did not appear. The Circuit Court made an order:
- Granting the plaintiff possession of the property; and
- Staying execution until 1 February 2002.
1 February 2002: Stay expired; the defendant did not vacate.
28 March 2002: Execution order obtained authorising the Sheriff to take and deliver possession.
15 April 2002: Sheriff took possession and delivered same to the plaintiff.
Thereafter, the defendant unlawfully re-entered the property.

2.3 The Defendant’s Attempt to Challenge the Judgment and Appeal

The defendant attempted to challenge the Circuit Court order:

28 June 2002: Motion in the Circuit Court to set aside the 17 December 2001 order, returnable 11 October 2002.
That application was refused, though the Circuit Court granted a three-week stay to allow an appeal to be lodged.
5 January 2003: Plaintiff was served with an application to extend time for appeal.
11 February 2003: The Master of the High Court extended the time for appeal by a further four weeks.
14 January 2003: The defendant issued a High Court motion seeking a stay of the Circuit Court order pending appeal, returnable 27 January 2003. That stay motion was struck out.
10 March 2003: A Legal Aid Board solicitor came on record for the defendant.
11 March 2003: Ex parte application granting:
- Substituted service of the notice of appeal; and
- An extension of time to serve the notice of appeal, to 13 March 2003.
12 March 2003: The defendant’s solicitor served the notice of appeal on the plaintiff.
After 12 March 2003: The defendant took no further steps to prosecute the appeal.

2.4 Deaths of the Original Parties and Substitution

10 October 2019: Original defendant (Raymond McGovern) died.
1 July 2023: Original plaintiff (Marie Lucy O’Kelly) died.
21 November 2023: Present defendant (Niall McGovern) was substituted as defendant.
19 February 2024: Present plaintiff (Grellan O’Kelly) was substituted as plaintiff.

Crucially, during the long period from March 2003 to July 2023:

The original defendant took no steps to progress the appeal; and
His personal representatives also took no steps during the lifetime of the original plaintiff.

2.5 The Strike-Out Application

On 31 May 2024, the substituted plaintiff issued a motion to have the defendant’s appeal struck out for want of prosecution and delay. The reliefs were granted by Barr J, leading to the present judgment.

3. Summary of the Judgment

3.1 The Issues

The High Court had to decide:

Whether the very substantial period of inactivity (over 20 years) justified striking out the appeal for want of prosecution under the Kirwan v Connors principles; and
Whether any technical or equitable considerations (title issues, capacity of the substituted plaintiff, respondent’s inaction, or overlapping litigation) should prevent or delay that outcome.

3.2 The Court’s Key Findings

Barr J concluded that:

The modern delay test laid down by the Supreme Court in Kirwan v Connors [2025] IESC 21 applies to appeals as it does to first-instance claims, but:
- In the appellate context, those principles must be applied with greater stringency, because:
  - The respondent already holds a judgment; and
  - An appellant largely has to do no more than file the necessary papers to get an appeal listed.
The delay in this case was gross, inordinate and unexplained:
- No steps were taken after service of the notice of appeal in March 2003;
- Neither the deceased defendant nor his estate offered any sufficient explanation; and
- The defendant’s de facto continued occupation could not justify his failure to prosecute the appeal, especially as it was in breach of a court order.
The death of the original plaintiff (who was the central witness for the respondent side) constituted extreme prejudice; allowing the appeal to proceed after more than two decades and after her death would make the litigation “a parody of justice”.
The respondent’s failure to take steps to force the appellant to prosecute his own appeal did not amount to acquiescence or shared responsibility for the delay.
The present plaintiff had full locus standi:
- The original Circuit Court order had been made in favour of the original plaintiff in her personal capacity;
- By the substitution order, the present plaintiff stepped into her shoes and took her place “with all the benefits and burdens” of the litigation; and
- Any absence of a grant of representation to the estate of Charles McGovern did not defeat his right to rely on the existing Circuit Court judgment or to bring this motion.
Pending or proposed collateral proceedings (about:
- the 2009 transfer of the property to the original plaintiff’s daughter; or
- alleged breach of duty by the original plaintiff as personal representative of Charles McGovern’s estate)
did not justify keeping this 2001 litigation alive “for some indeterminate period”.

3.3 Disposition

Applying Kirwan v Connors, as supplemented by his own emphasis on the appellate context, Barr J:

Struck out the defendant’s appeal for want of prosecution and delay; and
Granted the reliefs sought in the plaintiff’s motion of 28 May 2024 (issued 31 May 2024).

4. Analysis

4.1 Precedents and Authorities Cited

4.1.1 Kirwan v Connors [2025] IESC 21

Kirwan v Connors is the pivotal authority. In that case, the Supreme Court (O’Donnell CJ delivering the majority judgment) reformulated the Irish law on dismissal for want of prosecution and delay. The key innovation was recognition that the passage of time itself is a critical factor, and that once inactivity crosses certain milestones, dismissal may follow even without highly specific prejudice.

At paragraph 26 (quoted verbatim by Barr J), O’Donnell CJ set out a structured test:

Before 2 years of inactivity:
- A claim should generally only be dismissed if:
  - It is an abuse of process; or
  - There is very serious prejudice to the defendant, sufficient to meet the standard of O’Domhnaill v Merrick.
After 2 years of total inactivity:
- A claim may be dismissed for want of prosecution;
- In practice, courts will often look for some additional factor pointing to dismissal; and
- If not dismissed, strict case-management directions may be imposed, non-compliance with which would itself justify dismissal.
After 4 years of total inactivity:
- If the case depends on oral evidence, the default position is that it should be dismissed, because:
  - Memories fade;
  - Witnesses become unavailable; and
  - This imposes an unfair “risk of failing recollections and witness reluctance” on the defendant.
- The burden shifts: the plaintiff must show compelling reasons why the case can still fairly proceed.
- Specific prejudice to the defendant (e.g. lost documents, deceased witnesses) strengthens the case for dismissal, but is not strictly necessary: the passage of time alone is enough.
After a cumulative period of more than 5 years of complete inactivity:
- The court has a “generous power” to dismiss proceedings;
- Dismissal should be the default unless there is a “pressing exigency of justice” – e.g.:
  - Exceptional disadvantage suffered by the plaintiff (educational, social, economic);
  - Rare public law cases where there is a strong public interest in having the issues determined; or
  - Serious misconduct by the defendant that contributed to delay.

Kirwan therefore marked a major shift: courts are now invited to give significantly increased weight to the simple fact of time passing, and to dismiss claims more readily once critical inactivity thresholds have been crossed.

4.1.2 McGrath v Irish Ispat Limited (in voluntary liquidation) [2006] 3 IR 261

McGrath v Irish Ispat is a pre–Kirwan Supreme Court authority that clarified that the principles on delay are generally the same whether:

A defendant seeks to dismiss a plaintiff’s first-instance claim; or
A respondent seeks to dismiss an appeal for want of prosecution.

Barr J adopted this equivalence, but crucially added that in the context of an appeal – where the respondent already has a judgment – the Kirwan principles should be applied “with greater stringency” (para 42). This is an important refinement and arguably the most significant doctrinal contribution of this judgment.

4.1.3 O’Domhnaill v Merrick

While not cited with a full citation in the judgment, O’Domhnaill v Merrick is a cornerstone case on dismissal for delay. It established that claims may be struck out where delay renders a fair trial impossible – particularly where:

Key witnesses have died or can no longer recall events adequately; and
The defendant’s ability to defend is significantly prejudiced.

In Kirwan, O’Donnell CJ used O’Domhnaill as a benchmark for the level of prejudice that had to be shown in the pre–two-year period. After that threshold, lesser or more generalised prejudice is sufficient.

4.1.4 Denis Guilfoyle Developments Ltd v Wardrop [2025] IEHC 414

In Denis Guilfoyle Developments, the High Court applied Kirwan in the first-instance context. The Court recognised:

Two years of inactivity as the inflection point at which dismissal becomes a live possibility; and
That after four years, especially where oral evidence will be needed, dismissal is ordinarily justified unless the defaulting party can point to strong countervailing circumstances.

Barr J cited Guilfoyle as confirmation of the adoption and application of Kirwan in the High Court’s approach to delay.

4.1.5 Nowak v Chartered Institute of Accountants in Ireland [2025] IEHC 408

The judgment notes that the principles in Kirwan were applied “in similar vein” by O’Donnell J in Nowak v Chartered Institute of Accountants in Ireland [2025] IEHC 408, again reinforcing that Kirwan is to be treated as the central authority governing applications to dismiss for want of prosecution in modern Irish law.

4.2 The Court’s Legal Reasoning

4.2.1 Extending Kirwan to Appellate Proceedings – With “Greater Stringency”

The most notable doctrinal step is contained in paragraphs 40–42 of the judgment:

First, the Court accepts – following McGrath v Irish Ispat – that the same general delay principles apply to appeals as to first-instance proceedings.
Second, Barr J emphasises an important difference:
- At trial level, the plaintiff has only a chose in action – a claim not yet vindicated; but
- On appeal, the respondent usually already has the benefit of a judgment, either granting relief or dismissing a claim against them.
Third, in light of that difference, the Court holds that Kirwan should be applied “with greater stringency” when considering an appellant’s delay:
- The respondent should not be deprived of the benefit of a judgment for a prolonged period due to the appellant’s inaction; and
- Particularly for appeals against default judgments, the procedural steps required to list the appeal are relatively minimal – making prolonged inactivity more difficult to justify.

This is a significant development. It confirms that:

The Kirwan framework is the governing test for appeal dismissals for want of prosecution; and
Within that framework, the court will be even less tolerant of delay where a party is seeking to disturb a judgment already obtained by the respondent.

4.2.2 Assessment of Delay and Inactivity

The factual situation here was extreme: after service of the notice of appeal on 12 March 2003, there was no activity whatsoever to progress the appeal. Both parties then died, and substitution occurred only in 2023–2024.

Under the Kirwan matrix:

The case comfortably exceeds the 2-year and 4-year milestones; and
On any view, there was more than 5 years of total inactivity, meaning the court enjoyed a “generous power” to dismiss and should do so unless there was a pressing exigency of justice requiring the appeal to proceed.

The Court noted:

There was no explanation at all for the defendant’s failure to prosecute his appeal (para 44); and
Counsel’s suggestion that the delay was understandable because the defendant remained in occupation of the house was rejected:
- The defendant’s continued possession was in breach of a court order; and
- A party cannot invoke the benefit of their own continued breach of a court order as a justification for inaction.

Since the case concerned property rights and a family dispute about occupation, the appeal would plainly have depended heavily on oral evidence from the original plaintiff and other witnesses. By the time of the motion, the original plaintiff was deceased. Under Kirwan, once more than four years of inactivity have passed in a case dependent on oral evidence, dismissal is the norm unless compelling reasons are shown. Here, no such reasons were provided; instead, prejudice was profound.

4.2.3 Prejudice: The Death of the Original Plaintiff

Although Kirwan lessened the structural need for highly specific prejudice at high inactivity thresholds, such prejudice existed in abundance in this case.

The Court highlighted that:

The original plaintiff, central to the factual narrative and to any defence to the appeal, had died in 2023; and
This was described as the “most extreme prejudice possible” for the purposes of defending proceedings (para 27).

Any continuation of the appeal would:

Require the substituted plaintiff to defend without the direct evidence of the person who:
- Issued the civil bill;
- Engaged with Dublin Corporation;
- Controlled access to the property; and
- Dealt with her brother in relation to his occupation.
Exacerbate the risk of unfairness that Kirwan and O’Domhnaill expressly aim to prevent.

Barr J went so far as to say that permitting the appeal to proceed in 2025, when it had been lodged in 2003 and the original plaintiff had died in 2023, would render the litigation a “parody of justice” (para 50). This is a strong expression of the idea that beyond a certain point, delay corrodes the very possibility of a fair adjudication.

4.2.4 No Duty on the Respondent to Progress the Appellant’s Appeal

The defendant’s counsel argued that the plaintiff, too, had “done nothing” between 2003 and 2023 to bring the appeal on for hearing, and that the court should consider this when weighing where the balance of justice lies.

The Court rejected this argument emphatically:

The responsibility to prosecute an appeal lies with the appellant – the party dissatisfied with the lower court’s judgment.
A party who has obtained a judgment is entitled to rest on that judgment and is not obliged to take steps to advance an opponent’s appeal.
Accordingly, the original plaintiff’s inaction could not be treated as acquiescence in, or contribution to, the defendant’s delay (paras 45–46).

This reinforces an important procedural principle: a respondent is not required to “chase” an appeal. The onus lies squarely on the appellant to progress it; failure to do so will be treated as their delay alone.

4.2.5 Locus Standi and Substitution: The Role of the Present Plaintiff

The defendant also argued that the present plaintiff lacked standing to bring the application because:

The original plaintiff had allegedly never completed an assent vesting the property in herself as personal representative of the estate of Charles McGovern; and
The current plaintiff, though substituted as plaintiff, had not taken out a grant of representation to the estate of Charles McGovern.

Therefore, it was contended, the present plaintiff could not validly rely on the Circuit Court judgment in the ejectment proceedings and had no locus standi to seek to strike out the appeal.

Barr J rejected this submission on several grounds:

Nature of the original proceedings:
- The civil bill was expressly issued by the original plaintiff in her personal capacity;
- While there was an alternative plea invoking her capacity as personal representative under the will of Charles McGovern, the order actually granted was an order in her favour personally (para 47).
Effect of substitution:
- By order of 19 February 2024, the present plaintiff was substituted in her place;
- This substitution put him squarely in the shoes of the original plaintiff “for the purposes of the action,” carrying all the “benefits and burdens” of the litigation (para 48);
- He thus:
  - Enjoyed the benefit of the 17 December 2001 judgment; and
  - Was subject to the notice of appeal served on 12 March 2003.
Irrelevance of grants of representation to Charles McGovern’s estate:
- For the purposes of this motion, the only question was whether the appeal should be struck out for delay;
- That question turned on the existence of a valid judgment and a dormant appeal against it, not on the plaintiff’s title to the property under succession law;
- Any disputes about the administration of Charles McGovern’s estate could be litigated separately and could not deprive the substituted plaintiff of the right to rely on the existing Circuit Court order in this appellate context.

This is an important practical clarification: the procedural status conferred by substitution in an existing action, and by the existence of a final judgment under appeal, can be disentangled from deeper questions of underlying beneficial entitlement or estate administration. Those title issues, if contested, must be addressed in separate proceedings.

4.2.6 Collateral Proceedings and the Need for Finality

The defendant relied on two sets of related or anticipated proceedings:

Proceedings issued in 2023 challenging the validity of the 2009 transfer of the property by the original plaintiff to her daughter (who was not a party to these proceedings); and
Forthcoming proceedings, anticipated by an independent solicitor, acting as administrator ad litem of the estate of Charles McGovern, against the present plaintiff for alleged breach of duty in the administration of that estate.

Counsel argued that, given these controversies, the court should adjourn the strike-out application to await the outcome of those disputes, rather than dismiss the appeal outright.

The Court refused:

These collateral issues concerned:
- Title and transfers of ownership; and
- Possible misfeasance in estate administration.
They did not bear directly on the question of whether the dormant appeal in this 2001 ejectment litigation should be permitted to remain alive indefinitely.
Barr J invoked the core procedural values of finality and proportionality:
- “Justice and common-sense demand that there must be an end to litigation. That point has long since been passed in the present case” (para 52);
- The High Court would not allow litigation commenced in 2001 to be held in suspense indefinitely, simply because other proceedings may or will be issued.

In effect, the Court drew a boundary line: other claims about title or breach of duty may proceed, but they cannot be used instrumentally to keep an ancient appeal artificially alive.

4.3 Impact and Wider Significance

4.3.1 For Appellate Practice

The most immediate impact is on future applications to strike out appeals for want of prosecution:

Kirwan v Connors is now firmly established as the governing framework, including for appeals.
However, Barr J’s judgment underscores that in appeals:
- The Kirwan thresholds will be applied even more robustly;
- The fact that the respondent already has a judgment is a powerful justice-based rationale for strict scrutiny of delay; and
- Minimal procedural effort is often sufficient to bring an appeal to hearing, weakening excuses for inactivity.

Appellants can infer the following practical lessons:

Substantial periods of inactivity, particularly beyond 2 years, and most especially beyond 4+ years, now carry a genuine and severe risk of dismissal of the appeal, even in the absence of detailed evidence of prejudice.
After 5 years of complete inactivity, the default expectation is dismissal unless an exceptional justice-based rationale is demonstrated – a demanding standard.
Arguments based on the appellant’s informal, de facto enjoyment of the benefit of the status quo (here, continued occupation in breach of a possession order) will not be entertained as justifications for failing to progress the appeal.

4.3.2 For Respondents Holding Judgments

The decision underscores that:

A party who has secured a judgment:
- Is entitled to rely on it; and
- Is not obliged to take steps to move an opponent’s appeal along.
Respondents may successfully seek dismissal of appeals where:
- There has been inordinate inactivity; and
- Especially where key witnesses have died or where oral evidence will be central.
Courts will resist attempts to hold judgments in abeyance indefinitely pending collateral litigation.

4.3.3 For Litigation Involving Estates and Personal Representatives

The case clarifies several points relevant to estate and trust litigation:

Substitution:
- Where a party dies and another is substituted by court order, the substitute:
  - Steps fully into the procedural position of the deceased; and
  - Inherits the “benefits and burdens” of that party’s litigation posture, including judgments and pending appeals.
Separation of procedural and substantive capacities:
- Even if there are arguments about whether the original plaintiff had perfectly regularised her title as personal representative, those do not automatically negate:
  - The validity of the judgment granted in her personal favour; or
  - The substituted plaintiff’s right to rely on that judgment in the appellate context.
Collateral estate proceedings:
- Actions against an executor or administrator for alleged malfeasance in administering an estate may proceed separately; but
- They are not a reason to prevent or delay the dismissal of an obsolete appeal in other, older proceedings, particularly where delay has already rendered a fair hearing impossible.

4.3.4 Systemic Themes: Finality, Fairness, and Efficient Use of Resources

The judgment reflects the broader post-Kirwan direction of Irish civil procedure, which is increasingly concerned with:

Finality – ensuring litigation does not linger for decades without progress;
Fairness – preventing trials or appeals from proceeding where delay has so undermined the evidential landscape that justice cannot meaningfully be done; and
Efficient allocation of judicial resources – avoiding the continued listing of stale matters merely because parties have failed to bring them to conclusion.

The vivid language of “parody of justice” and the insistence that “justice and common-sense demand that there must be an end to litigation” show a judiciary prepared to give practical effect to these values by striking out severely delayed cases and appeals.

5. Complex Concepts and Terminology Explained

5.1 “Judgment in Default of Appearance”

When a defendant is served with proceedings and fails to enter an appearance or otherwise engage, the plaintiff may apply for a default judgment. The court, if satisfied that service was proper and that the claim is in order, may grant judgment without hearing a defence. That is what occurred in December 2001: the Circuit Court granted possession to the plaintiff because the defendant had not engaged with the proceedings.

5.2 “Stay of Execution”

A stay of execution is an order delaying the enforcement of a judgment. Here, the Circuit Court’s possession order was stayed until 1 February 2002, giving the defendant time (in theory) to vacate voluntarily or to appeal. Once the stay expired, the plaintiff was entitled to enforce the order, which she did by obtaining an execution order and enlisting the Sheriff.

5.3 “Ejectment” and “Possession Proceedings”

An ejectment action is a claim to recover possession of land from someone who is allegedly in wrongful occupation. The plaintiff asserts a better right to possession and seeks a court order requiring the occupant to leave and hand over control of the property.

5.4 “Licence”

A licence is a personal permission to occupy or use land without conferring any estate or proprietary right in it. The original plaintiff’s case was that she had allowed her brother to live in the property as a licensee, revocable at will, not as a tenant or co-owner.

5.5 “Want of Prosecution”

“Want of prosecution” refers to situations where a party, typically a plaintiff or appellant, fails to take the steps necessary to advance their case. If the delay is inordinate and inexcusable, the other side can apply to have the case or appeal dismissed, to avoid injustice caused by stale litigation.

5.6 “Abuse of Process”

An abuse of process occurs when legal proceedings are used improperly, for purposes inconsistent with the fair administration of justice (for example, to harass an opponent, to relitigate issues already decided, or to drag out a case for tactical reasons). Under Kirwan, before two years of inactivity, a case will normally only be dismissed if there is an abuse of process or extremely serious prejudice (in the O’Domhnaill v Merrick sense).

5.7 “Locus Standi”

Locus standi refers to the legal capacity or entitlement to bring or maintain proceedings. The defendant argued that the substituted plaintiff lacked locus standi because he had not taken out a grant of representation to Charles McGovern’s estate. The Court disagreed, holding that:

The action and judgment existed in the personal name of the original plaintiff; and
The substituted plaintiff acquired her procedural position by the substitution order.

Therefore, he had standing to bring the application, irrespective of estate administration questions.

5.8 “Administrator ad litem”

An administrator ad litem is a person appointed to represent the estate of a deceased individual in specific litigation, rather than to administer the estate in general. Here, an independent solicitor had obtained a limited grant to bring an action for alleged breach of duty by the original plaintiff in her conduct as personal representative of Charles McGovern’s estate. That potential litigation, however, was held irrelevant to the question whether the dormant appeal in the ejectment proceedings should be struck out.

5.9 “Assent” in Probate Law

An assent is a formal act by which a personal representative (executor or administrator) transfers a particular asset from the estate to a beneficiary. It is often required to complete the legal vesting of property. The defendant sought to rely on the alleged absence of an assent in favour of the original plaintiff to challenge the standing of the substituted plaintiff. The Court treated that as a matter for separate proceedings on title and not as a bar to the motion in this case.

6. Conclusion

O'Kelly v McGovern is an important High Court decision that consolidates and extends the Supreme Court’s recalibration of delay doctrine in Kirwan v Connors. It confirms that:

The Kirwan framework applies equally to appeals as to first-instance proceedings; and
In the appellate context, where the respondent already has the benefit of a judgment, courts will apply those principles with heightened stringency.

Against a backdrop of more than twenty years of complete inactivity, the death of both original parties, unresolved collateral disputes, and no credible explanation for delay, Barr J held that allowing the appeal to proceed would amount to a “parody of justice.” The decision reaffirms:

The responsibility of appellants to actively prosecute their appeals;
The right of respondents to rely on their judgments without being compelled to drive opposing appeals forward;
The court’s willingness to dismiss appeals and actions once Kirwan thresholds are crossed and no compelling justification emerges; and
The principle that litigation, even where embedded in complex webs of estate and property disputes, must not be allowed to continue indefinitely without meaningful progress.

In doctrinal terms, the judgment is significant because it:

Articulates explicitly that Kirwan must be applied more strictly to appeals;
Clarifies the procedural effect of substitution on standing to rely on existing judgments; and
Reinforces the boundary between procedural issues (delay and dismissal) and substantive disputes about the underlying title, which belong in separate proceedings.

For litigants and practitioners, the message is unambiguous: in the post-Kirwan era, appeals cannot be left dormant for years – let alone decades – without grave risk of dismissal. Courts will not sacrifice fairness, finality, or common sense to resurrect ancient disputes where delay has fatally undermined the possibility of a just outcome.

Heightened Application of Kirwan Delay Principles to Appeals: Commentary on O'Kelly (Estate of O'Kelly) v McGovern (Estate of McGovern) [2025] IEHC 704