Kirwan v Connors & Ors: A Structured Test for Dismissing Proceedings for Want of Prosecution

1. Introduction

In Kirwan v Connors & Ors [2025] IESC 21, the Supreme Court of Ireland was invited to reassess the long-standing Primor test for striking out civil proceedings for want of prosecution. The plaintiff, Mr Brendan Kirwan, had issued two sets of proceedings in 2012 and 2013, effectively staying execution of a €1,056,936 judgment obtained against him by Filbeck Limited. Over the next six years, Mr Kirwan took no substantive steps to advance his claims. In 2018 the defendants—MJ O’Connor Solicitors and members of the Buttle family—moved to dismiss both actions under Order 122, Rule 11 of the Rules of the Superior Courts and the Court’s inherent jurisdiction. The High Court and Court of Appeal upheld dismissal on grounds of inordinate and inexcusable delay, prejudice to the defendants and the balance of justice. On appeal to a seven-judge Supreme Court panel, Chief Justice O’Donnell, joined by a majority, delivered an authoritative restatement of the jurisdiction to dismiss for want of prosecution and a new multi-tiered test.

2. Summary of the Judgment

The Supreme Court unanimously affirmed that both the 2012 and 2013 proceedings could be dismissed for want of prosecution. Beyond that consensus, the Court divided on the source of the jurisdiction:

Hogan J. (majority): The power to strike out for inordinate and inexcusable delay derives from both the inherent jurisdiction of the court and Order 122, Rule 11.
Murray J.: Order 122, Rule 11 alone occupies the field for dismissals on general delay; the inherent jurisdiction is displaced.
Collins J. (concurring): While agreeing with dismissal, he emphasized a cautious approach to ensure that meritorious claims are not prematurely barred.

Chief Justice O’Donnell sided with Hogan J.’s attribution of a dual-source jurisdiction and, having surveyed the thirty years’ experience under Primor, concluded that the existing test required refinement. His judgment promulgates a structured, threshold-based approach keyed to periods of inactivity (2, 4 and 5 years) and retains flexibility for exceptional circumstances.

3. Analysis

3.1 Precedents Cited

Primor v Stokes Kennedy Crowley [1996] 2 IR 459 – first recognition of courts’ power to strike out for want of prosecution.
Order 122, Rule 11, Rules of the Superior Courts – statutory mechanism permitting dismissal after two years of inactivity.
Allen v Sir Alfred McAlpine [1968] 2 QB 229 and Birkett v James [1977] 3 WLR 38 – English decisions endorsing inherent jurisdiction to dismiss for delay.
G McG v DW (No. 2) [2000] 4 IR 1 – principle that specific legislative schemes can displace inherent jurisdiction.
O’Domhnaill v Merrick [1984] IR 151 – test for prejudice so grave that a fair trial is impossible.
Barry v Buckley [1981] IR 306 – example of inherent jurisdiction to dismiss hopeless cases.
Slattery & Ors v An Taoiseach & Ors [1993] 1 IR 286 – no constitutional breach by denying late relief; access to court was afforded.

3.2 Legal Reasoning

Chief Justice O’Donnell identified three core conclusions:

Primor’s Objectives Unfulfilled: Thirty years of litigation under the Primor rubric have produced protracted applications, inconsistent results and excessive judicial time spent on preliminary skirmishes.
Need for Rule Amendment: The Rules of the Superior Courts should be revised to incorporate clear, threshold-based rules for dismissal on want of prosecution.
Convergent Outcome: Whether the jurisdiction stems solely from Order 122, Rule 11 (Murray J.) or also from inherent jurisdiction (Hogan J.), the result in this and similar cases is the same: dismissal is justified where delay is inordinate, inexcusable and the balance of justice so demands.

On the question of source, Chief Justice O’Donnell agreed with Hogan J. that inherent jurisdiction co-exists with Rule 11. He declined to extend G McG to displace an inherent procedural power by reference to a delegated statutory rule.

On substance, the judgment replaces the amorphous “inordinate and inexcusable delay” plus “balance of justice” test with a calibrated approach:

Up to 2 years’ inactivity: proceedings should not be struck out except for abuse of process or prejudice so serious as to render fair trial impossible (O’Domhnaill jurisdiction).
2–4 years’ inactivity: dismissal becomes available absent specific additional prejudice—but refusal to dismiss must be accompanied by strict case-management directions.
4–5 years’ inactivity: prima facie dismissal unless the plaintiff shows compelling reasons to proceed (e.g. documentary evidence, witness availability, strong public‐law interest).
Over 5 years’ inactivity: broad power to dismiss unless exceptional justice demands continuation (e.g. severe plaintiff disadvantage, extraordinary public interest, defendant misconduct).

3.3 Impact

The new framework will likely:

Streamline interlocutory applications under Primor and Rule 11, reducing costs and court time.
Provide litigants clearer guidance on the consequences of delay and incentives for active case management.
Encourage amendment of the Rules of the Superior Courts to codify the thresholds and provenance of the power to strike out.
Reduce unpredictability and appeals by narrowing the areas of discretionary judgment.
Preserve fairness to both plaintiffs (by requiring strong justification for very stale claims) and defendants (by curtailing open‐ended exposure to litigation).

4. Complex Concepts Simplified

Inherent Jurisdiction: The court’s background power to regulate its own procedures and ensure justice is done, independent of specific statutory rules.
Order 122, Rule 11: A procedural rule allowing dismissal of actions for want of prosecution if there is over two years of inactivity on the record.
Inordinate and Inexcusable Delay: Delay that is both excessive and unjustified, typically measured against standards of reasonable expedition in civil litigation.
Abuse of Process: When a plaintiff uses court procedures for an improper purpose or in a manner that offends justice, warranting dismissal irrespective of delay.
O’Domhnaill v Merrick Test: A threshold for dismissal where a fair trial has become impossible or where continued proceedings would constitute an abuse of process.

5. Conclusion

Kirwan v Connors & Ors marks a turning point in Irish civil procedure. The Supreme Court has distilled decades of Primor jurisprudence into a pragmatic, tiered approach that emphasizes the inherent prejudice of delay, sets clear inactivity thresholds, and balances the rights of plaintiffs and defendants.

Key takeaways:

Delay itself is harmful; passage of time deserves greater weight in dismissal decisions.
A structured two-year, four-year and five-year threshold model promotes consistency and case-management efficiency.
Inherent jurisdiction and Order 122, Rule 11 coexist in authorizing dismissals for want of prosecution.
Courts should draft stricter, outcome-oriented case management directions when refusing dismissal in borderline cases.
Legislative reform of the Rules of the Superior Courts is desirable to enshrine these principles.

By clarifying both source and substance of the power to strike out, this judgment ensures that stale claims will no longer linger indefinitely, thereby safeguarding the timely administration of justice in Ireland.