No-Order-as-to-Costs in the Supreme Court for Public-Interest Re-examination of Delay Doctrine (and Attorney General Abides Own Costs)

1. Introduction

This ruling concerns costs arising from an appeal that ultimately became the vehicle by which the Supreme Court re-examined and reformulated the law on dismissal for delay. Although the heading supplied with the prompt refers to “ACE Autobody Ltd v Motorpark Ltd & Ors”, the judgment text is in proceedings between Brendan Kirwan (plaintiff/appellant) and multiple defendants/respondents including Marguerite Connors trading as MJ O’Connor Solicitors and the Buttle/Filbeck defendants.

The underlying litigation stemmed from a failed 2006 property transaction and related loan/security arrangements. After years of inactivity, the High Court and Court of Appeal dismissed the actions (and related applications) for inordinate and inexcusable delay. Leave to appeal was granted under Article 34.5.3°. The Supreme Court ultimately dismissed the appeal on the merits in Kirwan v. Connors [2025] IESC 21, describing that decision as a major development since Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459.

The present ruling (23 March 2026) addresses how the costs should lie across (i) the High Court and Court of Appeal and (ii) the Supreme Court, in circumstances where the appeal was re-argued before a seven-judge court and the Attorney General participated as a notice party/amicus-type participant.

2. Summary of the Judgment (Costs Ruling)

  • High Court and Court of Appeal: the Supreme Court confirmed the existing costs orders in favour of both sets of defendants (standard “event-based” costs following the successful strike-out for delay).
  • Supreme Court: the Court made no order as to costs for any party. The Court treated the Supreme Court proceedings as having a significant public interest dimension because the appeal was the occasion for re-examining Primor and was re-argued before an expanded seven-judge panel.
  • Attorney General: no order for costs either for or against the Attorney General; the Court applied the standard approach that the Attorney General abides his own costs when participating in this capacity.

3. Analysis

3.1 Precedents Cited

Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459

Primor is the foundational authority on applications to dismiss proceedings for delay. The Court of Appeal (Power J.) was quoted as emphasising that the Primor inquiry is “not so much with the merits of the case per se” but rather whether it is right to allow proceedings to remain in being after a long period with little progress.

The Supreme Court’s merits judgment in Kirwan v. Connors [2025] IESC 21 (referenced in this costs ruling) is described as having re-formulated the Primor approach into a stricter and more structured framework, measuring delay “in the first instance” by reference to the two-year period in Ord. 122, r. 11 RSC. That doctrinal significance is central to why the Court treated the Supreme Court phase as carrying a public-interest character for costs purposes.

[2019] IEHC 954 (Meenan J.)

The High Court struck out the proceedings for inordinate delay, rejecting explanations (including issues said to arise from particulars and access to files), finding prejudice, and concluding the balance of justice favoured dismissal. This became the baseline “event” from which routine costs consequences followed.

[2022] IECA 242 (Power J.)

The Court of Appeal affirmed the strike-out, applying the Primor analysis with particular attention to the plaintiff’s prolonged inactivity (approximately five years), and stressing the obligation to proceed with “due expedition” where serious allegations are made and the dispute arises long after the underlying transaction. This reinforced that the lower-court outcomes were the product of a conventional application of established principles, supporting the Supreme Court’s conclusion that lower-court costs orders should not be disturbed.

Kirwan v. Connors [2025] IESC 21

The costs ruling treats the 2025 decision as a watershed: the Court notes that “lengthy delay in itself could justify” dismissal and that the Primor test was re-formulated with structured reference to Ord. 122, r. 11. The fact that the Supreme Court appeal served as the platform for that legal development is the key “public interest” factor leading to no order as to costs in the Supreme Court.

3.2 Legal Reasoning

  1. Segmentation of costs by court level: The Court explicitly separated the costs analysis for (a) High Court and Court of Appeal, and (b) Supreme Court. This allowed it to preserve the ordinary consequence of defeat in the courts below while applying a different discretionary approach to the Supreme Court phase.
  2. Lower courts = routine application of settled law: The Court characterised the High Court and Court of Appeal costs as “standard costs orders” flowing from the “routine application” of well-established delay jurisprudence. Since the appellant failed on appeal and the strike-out was affirmed, there was “no reason to disturb” those costs.
  3. Supreme Court = public interest and reasonableness: The Supreme Court costs were “of a slightly different character” because the case became the occasion for re-examining Primor, was re-argued, and involved an extended seven-judge court. The Court held it was reasonable for Mr. Kirwan to have the issue fully determined, and therefore made no order as to costs in the Supreme Court.
  4. Attorney General costs: The Attorney General participated “qua notice party” and effectively as “a form of amicus curiae”. The Court applied the “standard order” that the Attorney General abides his own costs, making no order for or against him.

3.3 Impact

  • Encouraging clarification appeals without automatic adverse costs exposure: The ruling signals that, where a Supreme Court appeal materially serves the public interest by clarifying or restructuring legal doctrine (here, the re-examination of Primor), the Court may temper the usual “costs follow the event” approach by making no order as to Supreme Court costs—particularly where it was reasonable to pursue final clarification.
  • But not a general costs amnesty: The Court’s approach preserves the ordinary position in the courts below. Litigants who delay and lose should expect to bear the ordinary costs consequences at first instance and on intermediate appeal, even if the case later raises points of wider importance at Supreme Court level.
  • Institutionalising Attorney General participation: By reiterating that the Attorney General frequently participates in major issues and usually “abides his own costs,” the ruling stabilises the costs expectations for such interventions, supporting candid and independent submissions without fear of routine costs shifting.

4. Complex Concepts Simplified

“Inordinate and inexcusable delay” / “want of prosecution”
A party who starts proceedings must progress them with reasonable speed. If the delay is excessive (“inordinate”) and not justified (“inexcusable”), the court may dismiss the case to protect fairness and the integrity of the process.
Primor test
The classic framework for deciding whether to dismiss for delay. This litigation is significant because the Supreme Court later re-formulated that framework in Kirwan v. Connors [2025] IESC 21.
Ord. 122, r. 11 RSC
A Rules of the Superior Courts provision commonly associated with dismissal for delay; in the 2025 merits decision it was used as an initial benchmark (a two-year reference point) in the reformulated approach.
“No order as to costs”
Each party bears its own costs for that stage of the proceedings; the winner does not recover costs from the loser.
Attorney General as “notice party” / “amicus curiae”
The Attorney General participates not to win or lose as a typical litigant, but to assist the Court on issues of general public importance; the usual costs position is that the Attorney General pays his own costs and does not recover costs.

5. Conclusion

The Supreme Court confirmed the ordinary costs consequences of failure in the High Court and Court of Appeal where proceedings were struck out for delay, but made no order as to costs in the Supreme Court because the appeal had a genuine public interest dimension as the occasion for re-examining Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459. It also reaffirmed the standard approach that the Attorney General abides his own costs when participating in this amicus-type role. The ruling thus delineates a principled, stage-specific approach to costs: routine “event-based” costs below, with discretion to withhold costs at Supreme Court level where a reasonable appeal advances systemic clarification of the law.