Holmes v Ireland and Ors: Presumptive Strike-Out for Post-Kirwan Inactivity Exceeding Five Years Absent a “Pressing Exigency of Justice”

1. Introduction

Holmes v Ireland and Ors concerns a striking-out application brought by the fourth- and fifth-named defendants (the Health Services Executive and the Adelaide and Meath Hospital, Dublin, incorporating the National Children’s Hospital) seeking dismissal for want of prosecution. The plaintiff issued a personal injuries summons on 14 March 2007 arising from alleged MRSA-related injury following post-accident inpatient care in 2005. The action was characterised by prolonged periods of procedural inactivity, repeated difficulties in obtaining records, and (critically) an extended failure to secure a medico-legal report from the plaintiff’s treating consultant.

The key legal issue was how the High Court should apply the Supreme Court’s reformulated approach to delay and dismissal articulated in Kirwan v. Connors & ors [2025] IESC 21, particularly the emphasis on “inactivity” and the presumption in favour of dismissal as time passes, including the “generous power” to dismiss where there has been a cumulative period of complete inactivity exceeding five years unless a “pressing exigency of justice” requires the case to proceed.

Parties and claims

• Plaintiff: Nigel Holmes.
• Defendants (relevant moving parties): the Health Services Executive and the Adelaide and Meath Hospital, Dublin, incorporating the National Children’s Hospital.
• Claim essence: alleged “systems” failures in infection-control leading to the plaintiff contracting MRSA during follow-up treatment.
• Relief sought by defendants: dismissal pursuant to RSC Order 122, rule 11 and/or the court’s inherent jurisdiction due to inordinate and inexcusable delay, alleged constitutional/ECHR unfairness, and asserted abuse of process in maintaining proceedings without expert support.

2. Summary of the Judgment

Phelan J granted the defendants’ application to strike out the proceedings for delay. Applying Kirwan v. Connors & ors [2025] IESC 21, the Court found that there had been a cumulative period of complete inactivity exceeding five years. In those circumstances, the Court considered itself empowered—indeed expected—to dismiss unless satisfied that a “pressing exigency of justice” required the case to proceed. The plaintiff failed to establish such an exigency.

The Court accepted some explanations for certain earlier periods (including illness-related difficulties and the complexity of replies to particulars), and treated one period of discovery delay as excusable given FOI/records difficulties. However, the Court held that later and longer phases of inactivity— particularly years of non-progression linked to waiting for a medico-legal report from the treating consultant—were not excusable. The Court also rejected arguments that the defendants had acquiesced or that the matter was effectively “documents-only” such that prejudice was negated.

On costs, the Court indicated the “default position” that costs follow the event (RSC Order 99, rr.2 and 3), subject to hearing parties on the precise form.

3. Analysis

3.1 Precedents Cited (and their influence)

The judgment is best understood as an early High Court “working application” of Kirwan to a long-running clinical negligence/infection-control claim. Phelan J situates the analysis explicitly within the post-Kirwan framework and, in doing so, treats several older authorities as either subsumed by, or materially reweighted under, the new approach.

(a) Kirwan v. Connors & ors [2025] IESC 21 — the controlling authority

The Court extracts and applies multiple propositions from the majority judgments, including:

• Power to dismiss for want of prosecution derives from RSC Order 122, rule 11 and (per majority) the inherent jurisdiction.
• Time is not merely a factor; it carries increasing normative weight, creating a presumption in favour of dismissal as prolonged inactivity accumulates.
• Defendants are not “co-adventurers in litigation”; plaintiffs bear responsibility for moving their own cases.
• After specified periods of “total” or “complete” inactivity, dismissal may be justified without proof of specific prejudice.
• Defendant inertia is generally not a bar unless it amounts to acquiescence/positive encouragement (“actively lulled”).

Of particular operational significance is the adoption of the “five-year cumulative complete inactivity” threshold, after which the court “should have a generous power to dismiss” unless there is a “pressing exigency of justice” demanding trial. Phelan J treats that threshold as determinative once crossed.

(b) Primor v. Stokes Kennedy Crowley [1996] 2 IR 459 — historical baseline, now “substantially reformulated”

The Court notes that Kirwan “substantially reformulated” the Primor approach. Primor historically structured the inquiry into inordinate delay, inexcusable delay, and the balance of justice (often prejudice-centric). Post-Kirwan, the analysis is refocused on measurable inactivity milestones and presumptions, rather than an open-textured, prejudice-heavy balancing exercise.

(c) O'Domhnaill v. Merrick — exceptional prejudice jurisdiction

The Court references the “O'Domhnaill v. Merrick jurisdiction” as described in Kirwan: where delay is under two years, dismissal should generally occur only for abuse of process or prejudice rising to a “real and serious risk of an unfair trial and/or an unjust result”. While not determinative in this case (given far longer inactivity), it illustrates how Kirwan re-channels prejudice analysis into narrower compartments.

(d) Byrne v. McGreevy & ors [2021] IEHC 772 — “exceptional” application of the unfair trial test

Cited via Kirwan to underline that the high-prejudice unfair-trial threshold is exceptional, not the routine route for delay dismissal. In Holmes, the case had moved beyond such thresholds: the passage of time and inactivity itself carried the dismissal logic.

(e) Doyle v. The Commissioner of An Garda Síochána [2025] IEHC 591 — “inactivity” vs “proceeding” (Order 122, rule 11)

Phelan J relies on Dignam J’s discussion to reconcile Kirwan’s “inactivity” language with Order 122, rule 11’s “no proceeding” language. The Court accepts that for measuring delay, “inactivity” is essentially absence of formal procedural steps, while out-of-court activity may explain delay but does not re-set the “last step” clock.

(f) Pleadings and “knowing the case”: Permanent TSB v. Langan [2022] IEHC 722 and Mahon v. Celbridge Spinning Company Ltd [1967] I.R. 1

The defendants argued they could not identify specific prejudice without an expert report and did not fully know the case to meet. Phelan J rejects that as inconsistent with the function of pleadings under RSC Order 19, rule 3, citing Permanent TSB v. Langan (including its quotation of Fitzgerald J in Mahon v. Celbridge Spinning Company Ltd) to reaffirm that pleadings identify material facts and issues, not the evidence.

This is an important aspect of the judgment’s reasoning: the absence of an expert report is not treated as a pleading deficiency per se (though it may affect readiness and delay), and it does not excuse a defendant from pleading a defence where the summons and particulars are detailed.

(g) Expert evidential basis at commencement: Cooke v. Cronin & anor [1999] IESC 54

The defendants invoked Cooke v. Cronin & anor to argue that proceedings maintained without an expert report were abusive. The plaintiff countered (and the Court notes) that Cooke speaks to the need for some credible evidential basis for issuing proceedings, not necessarily a completed expert report in hand. While the action is dismissed for delay, the judgment is careful not to create an additional rule that lack of expert report alone is a freestanding strike-out ground on this motion.

(h) Treating vs reporting doctor: Dardis v. Poplovka (No 1) [2017] IEHC 149

The Court references Dardis v. Poplovka (No 1) to recognise why a plaintiff might seek a condition/prognosis report from the treating clinician. However, the Court draws a hard practical line: that rationale cannot justify allowing a misunderstanding and non-delivery to persist for a decade.

(i) Discovery necessity and alternative means: Ryanair Dac v. SC Vola.Ro Srl & anor [2021] IEHC 788 and PJ Carroll & Co. Ltd. v. Minister for Health [2006] 3 IR 431

In discussing records procurement and the defendants’ lack of cooperation on FOI copying costs and access, Phelan J notes in passing that discovery is not always “necessary” where documents can be gathered by inspection, referencing Ryanair Dac v. SC Vola.Ro Srl & anor and PJ Carroll & Co. Ltd. v. Minister for Health. This contextualises why some document-related delay is not treated as purely plaintiff-caused.

(j) Pre-Kirwan appeal authorities on prejudice and “documents-only” cases: Padden v. McDarby & ors [2024] IECA 207 and Walsh v. Mater Misericordiae University Hospital & anor [2023] IECA 276

The plaintiff relied on these to argue that where liability turns on records (and defendants have not investigated), prejudice is weak. Phelan J holds these are of limited relevance post-Kirwan where, after four years of total inactivity, the passage of time alone may justify dismissal, and after five years cumulative complete inactivity, dismissal is presumptive absent pressing exigency.

(k) Acquiescence and mutuality: Campbell v. Geraghty and ors [2022] IEHC 241

Discussed via Kirwan (Murray J’s emphasis) to reject any suggestion of mutual obligation to progress the case. The defendants’ without prejudice letters and sporadic settlement-related discussions did not amount to “actively lulling” or positive encouragement.

---

3.2 Legal Reasoning

(1) The framework: measuring “inactivity” and applying milestones

The Court’s reasoning proceeds in three stages:

1. Identify inactivity (under Order 122, rule 11 “proceeding” logic, informed by Doyle v. The Commissioner of An Garda Síochána): the Court distinguishes between formal procedural steps and other activity that may explain delay but does not necessarily count as a “proceeding”.
2. Assess explanations/excusability for the main periods of delay, separating excusable intervals (illness, document complexity, FOI obstacles) from inexcusable ones (extended periods with no meaningful action or urgency).
3. Apply the post-Kirwan presumption: once the Court concludes there has been cumulative complete inactivity exceeding five years, dismissal should follow unless a pressing exigency of justice is shown.

(2) Treatment of individual delay periods: a calibrated (but ultimately unforgiving) approach

Phelan J does not treat all delay as equal. Notably:

• Replies to particulars (approx. 3 years 4 months): accepted as explained by illness/recovery burdens and evidenced work on complex documentation (including an exhibited “file memo”), and thus treated as activity rather than “doing nothing”.
• First tranche discovery (approx. 2 years 4 months): explanation found lacking (“bald assertions”), and this tranche related to records not within the hospital defendants’ control.
• Second tranche discovery (approx. 1 year 5 months): substantially excused due to FOI and records-access difficulties, and the Court notes aspects of defendants’ non-cooperation regarding copying costs.
• Particulars of special damage and GP records (approx. 7 years 2 months): treated as the critical inexcusable block: the affidavit explanation focused on 2019 onward and failed to account for the earlier multi-year gap; the Court emphasised that waiting for Mr Moore’s report could not justify years of stasis.
• Unanswered 2021 correspondence (approx. 2 years 7 months): the “administrative error” explanation was too vague and, given the overall history, could not attract indulgence.

(3) The “Mr Moore problem”: waiting for a treating consultant is not a litigation strategy

The Court identifies the plaintiff’s reliance on the treating consultant (Mr David Moore) for a medico-legal condition/prognosis report as a major driver of delay. While acknowledging the logic of seeking a treating clinician report, the Court treats the solicitor’s approach—allowing years to pass, failing to escalate, and only contemplating an alternative expert after a strike-out motion—as incompatible with expedition.

The Court views it as decisive that the misunderstanding about the nature of the report sought (medico-legal condition/prognosis vs liability/causation) was only discovered in mid-2024, despite the initial 2007 letter clearly specifying what was needed. This supports the finding of inexcusable inactivity.

(4) Prejudice: reweighted after Kirwan

The plaintiff argued reduced prejudice because the case was a “systems case” largely determined by documents (e.g., Infection Control Committee minutes and hospital records). Phelan J accepts that this might reduce certain memory-based risks, and even doubts that extensive factual witness testimony would be crucial where authentic committee minutes exist. However, post-Kirwan, that does not save a case where the inactivity threshold is exceeded:

• After four years total inactivity, specific prejudice need not be shown; passage of time may suffice.
• After five years cumulative complete inactivity, the presumption in favour of dismissal strengthens further, shifting focus to “pressing exigency of justice”.

(5) Acquiescence: “without prejudice” engagement is not “active lulling”

The plaintiff’s acquiescence argument relied mainly on a without prejudice reference to a “loosely” discussed possibility of sharing expert-report costs. The Court finds this falls far short of the Kirwan threshold (positive encouragement/active lulling). On the contrary, the defendants’ correspondence repeatedly sought progress (special damages, records, expert reports) and warned of possible motions.

(6) “Pressing exigency of justice”: narrow and not established here

Applying the examples given by O’Donnell CJ in Kirwan (educational/social/economic disadvantage, exceptional public interest litigation, serious misconduct by a defendant), the Court holds that the plaintiff’s situation—while unfortunate—was not “exceptional” in the legally relevant sense. The implied alternative remedy (a professional negligence claim against the solicitor) could not constitute a “pressing exigency”, otherwise the Kirwan framework would be undermined in many delayed cases.

---

3.3 Impact

(1) Consolidation of a post-Kirwan “presumptive dismissal” culture

This decision exemplifies a shift from the older, often prejudice-driven Primor balancing to a more structured, milestone-based system. It signals that High Court judges will treat Kirwan as authorising robust case-ending outcomes where lengthy inactivity is demonstrated, even where:

• defendants cannot articulate granular prejudice,
• the claim is framed as “systems” negligence rather than individual clinician fault, and
• the evidential matrix is substantially documentary.

(2) Solicitor conduct and expert procurement: escalation expectations

The judgment implicitly sets an expected standard of litigation management: if a treating clinician will not produce a report, prolonged waiting is not acceptable. A plaintiff must consider practical alternatives (retrieve records, duplicate records, instruct another doctor) within a reasonable timeframe. The longer the inactivity, the less sympathetic the court will be to explanations grounded in professional inertia or misunderstanding.

(3) “Documents-only” and “systems case” arguments have reduced defensive power

Plaintiffs may still argue that documentary cases are less affected by delay, and Holmes acknowledges the point to an extent. But Kirwan recasts time itself as an institutional harm (“corrosive effect”), and Holmes shows that “systems case” framing will not, by itself, amount to a pressing exigency.

(4) Interplay with procedural compliance (verifying affidavit)

The defendants highlighted an apparent failure to swear a verifying affidavit under RSC Order 5A, rule 7 and breach of s.14(a) of the Civil Liability and Courts Act 2004. While not the basis of dismissal here, its mention reinforces that long-running PI litigation will be scrutinised for procedural compliance and that such defects, coupled with delay, may compound vulnerability to strike-out applications.

4. Complex Concepts Simplified

Want of prosecution / dismissal for delay

This is a power to end a case because the plaintiff has not progressed it. Under RSC Order 122, rule 11, a defendant may apply after two years from the last “proceeding”. After Kirwan, courts focus on “inactivity” milestones, with stronger presumptions favouring dismissal as time passes.

“Inactivity” vs “proceeding”

A “proceeding” generally means a formal procedural step (e.g., delivering discovery, serving a notice of trial). Informal activity—letters, investigations, FOI requests—may help explain delay, but it may not count as a “step” that stops the procedural clock. The court can still consider such activity when deciding whether delay is excusable.

Inordinate and inexcusable delay

“Inordinate” means excessive in duration; “inexcusable” means not justified by an acceptable reason (illness, incapacity, genuine settlement efforts, etc.). Post-Kirwan, even where excuses exist for some periods, long cumulative inactivity can still lead to dismissal absent a pressing exigency.

Prejudice

Traditionally, defendants often had to show that delay impaired a fair trial (lost witnesses, faded memory, missing records). After Kirwan, the passage of time itself can justify dismissal after certain inactivity milestones, so “specific prejudice” becomes less central in long-inactivity cases.

Acquiescence / “actively lulled”

A plaintiff may resist dismissal by showing the defendant encouraged delay or led the plaintiff to believe no strike-out would be sought. Mere inactivity by the defendant, or without prejudice settlement discussions, usually is not enough; the conduct must amount to real encouragement or “lulling”.

Res ipsa loquitur

A doctrine meaning “the thing speaks for itself”: in some negligence cases, the occurrence itself may allow an inference of negligence without pinpointing a specific act. In infection-control litigation, plaintiffs sometimes invoke it to argue systemic failure without identifying a particular staff member’s lapse.

Freedom of Information (FOI) vs discovery

FOI is a statutory route to obtain records from public bodies; discovery is a court-supervised litigation process requiring parties to disclose relevant documents. FOI delays may explain some litigation delay, but they do not necessarily excuse years of inactivity, especially once proceedings are already issued.

5. Conclusion

Holmes v Ireland and Ors [2026] IEHC 2 is a clear demonstration of the High Court’s post-Kirwan approach: once a plaintiff’s case contains a cumulative period of complete inactivity exceeding five years, dismissal will ordinarily follow unless the plaintiff can show a genuinely exceptional “pressing exigency of justice”.

The decision also carries a practical warning for clinical negligence/infection-control litigation: difficulties obtaining records or reports may explain limited periods, but prolonged passivity—particularly prolonged reliance on an unresponsive treating clinician—will not be indulged. The “balance of justice” is now strongly shaped by time as an independent value in the administration of justice, not merely a variable feeding into a prejudice analysis.