Order 122 Rule 11 RSC as Exclusive Basis for Dismissal for Want of Prosecution

Introduction

In Kirwan v Connors & ors [2025] IESC 21, the Supreme Court of Ireland was asked to resolve a long-standing uncertainty about the court’s power to dismiss civil proceedings for want of prosecution. The applicant, Brendan Kirwan, had sued a number of solicitors and associated parties in May 2013 for alleged malpractice and misrepresentation. No procedural step was taken by him after December 2013, yet the case lingered on the court lists. In August 2018, the defendants moved to dismiss the action for want of prosecution.

The key issues before the Court were:

• Whether the general power to dismiss an action for want of prosecution is rooted in the Rules of the Superior Courts (in particular Order 122 Rule 11) or in the court’s so-called “inherent jurisdiction.”
• What criteria should govern the exercise of that power once invoked.
• What role, if any, should defendant inactivity and abstract prejudice play in deciding such an application.

The panel, led by Murray J., with O’Donnell CJ, Dunne, Charleton, O’Malley, Hogan, Collins and Hogan JJ. concurring or dissenting on aspects, delivered a landmark ruling reshaping this area of Irish civil procedure.

Summary of the Judgment

The Court unanimously held that:

• The exclusive source of the court’s power to dismiss a plenary (non-summary) action for want of prosecution is Order 122 Rule 11 of the Rules of the Superior Courts (“the Rule”). The earlier decision in Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459, which treated the power as an “inherent jurisdiction,” is overruled.
• The Rule requires a complete cessation of procedural steps for two years before any defendant may apply to have the cause dismissed for want of prosecution.
• Once the two-year threshold is met, the onus shifts to the plaintiff to justify why the action should not be dismissed.
• In exercising the Rule-based discretion, courts must focus on three core factors:
  1. The total period of inexcusable delay;
  2. The reasons (if any) offered for that delay;
  3. The prejudice to the defendant and to the fairness of trial attributable to the passage of time.
• Defendant inactivity in pressing for dismissal does not bar them from invoking O. 122 r. 11 once the two-year period has elapsed.
• In the present case, Kirwan’s more than four years of unexplained procedural inactivity (December 2013–2018), combined with the passage of over twelve years since the events in issue, and the collateral benefit he obtained by staying a €1 million enforcement judgment, justified dismissal of his action.

Analysis

Precedents Cited

A number of English and Irish decisions were considered in depth:

• O'Domhnaill v Merrick [1984] IR 151: Established a narrow “unfair trial” jurisdiction (often called the O'Domhnaill jurisdiction) to dismiss where delay alone makes a fair trial impossible. Held exceptional and separate from want-of-prosecution dismissals.
• Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459: Treated dismissal for want of prosecution as part of the court’s “inherent jurisdiction,” fashioned an “inordinate and inexcusable delay” test and a “balance of justice” inquiry. Overruled on the basis that it ignored the mandatory two-year inactivity rule in O. 122 r. 11.
• Bannon v Craigavon Development Commission [1984] NI 387 and Braithwaite & Sons Ltd v Anley Maritime Agencies Ltd [1990] NI 63: Northern Ireland authorities wrestling with parallel inherent and rule-based powers. Favoured primacy of the rule once a statutory power exists.
• Willmot v State of Queensland [2024] HCA 42: Australian authority linking delay-based stays to abuse-of-process principles. Reaffirmed that only in extreme cases does delay justify stopping a trial outright.
• G.McG v DW (No 2) [2000] 4 IR 1: Murray J. (as he then was) explained that where statute or rule “expressly and completely delineates” a court’s procedural power, no broader inherent jurisdiction may be invoked to override it.

Legal Reasoning

Justice Murray set out a two-stage reasoning:

1. Source of Power:
   • O. 122 r. 11 RSC has existed in some form since 1891 and requires a two-year cessation of “proceedings” before dismissal. It reflects a legislative choice to curb dilatory lawsuits and protect defendants and court resources.
   • The supposed inherent jurisdiction to dismiss for want of prosecution has been long superseded by this rule. Invoking an inherent jurisdiction in parallel would undermine the clear statutory thresholds and procedures.
2. Criteria for Exercise:
   • Once two years’ inactivity is established, the onus shifts to the plaintiff to justify non-dismissal.
   • Three core factors guide the discretion:
     1. Total unexplained delay;
     2. Excuses or explanations for delay;
     3. Resulting prejudice to fair trial or parties’ ability to litigate.
   • No requirement to prove “serious prejudice” in the O'Domhnaill sense; less concrete prejudice—such as fading witness recollection—may suffice if delay is substantial.
   • Defendant inactivity in prodding a plaintiff does not bar them from applying under the Rule once the two-year threshold has passed.

Impact

This decision brings clarity and predictability to a previously “open-ended” jurisdiction. Key impacts include:

• Courts and litigants now know that no dismissal for want of prosecution can occur until two full years of procedural inactivity under O. 122 r. 11 have elapsed.
• “Inherent jurisdiction” arguments will no longer muddy want-of-prosecution applications, focusing the inquiry on clear rule-based criteria.
• Plaintiffs are incentivised to take timely procedural steps or risk losing their cases without a merits hearing.
• Defendants gain a reliable procedural weapon once a two-year hiatus occurs, without having to prove concretely destroyed evidence or missing witnesses.
• Future cases will apply a structured three-factor test, improving consistency in judicial decision-making on dilatory claims.

Complex Concepts Simplified

• Inherent Jurisdiction: The court’s broad, unwritten power to control its own process (abuse of process, contempt, case-management), distinct from powers expressly set out in statutes or rules.
• Order 122 Rule 11 RSC: A specific provision requiring a full two-year gap with no procedural step before a defendant can apply to dismiss for want of prosecution. It creates a “fall-back” power beyond targeted sanctions in other rules.
• Procedural Inactivity: An absence of formal steps—filing pleadings, motions, discovery applications, notices of trial—over a specified period.
• O’Domhnaill Jurisdiction: A narrow power to stay proceedings when delay alone makes a fair trial impossible, requiring a “real and substantial risk” to fairness (higher bar than simple want-of-prosecution).
• Prejudice: Harm to a party’s ability to defend or advance a claim. In want-of-prosecution cases, prejudice can be inferred from delay (e.g., fading memories) rather than proved by destroyed documents or lost witnesses.

Conclusion

Kirwan v Connors marks a watershed in Irish civil procedure. It streamlines the law by confirming that Order 122 Rule 11 is the sole, fully delineated basis for dismissing a plenary action for want of prosecution, displacing any parallel “inherent jurisdiction.” The judgment articulates a clear, three-factor test for courts to apply once two years of procedural inactivity have elapsed: total delay, explanations offered, and resulting prejudice. Plaintiffs are thus put on notice that failure to prosecute within these parameters risks dismissal without a merits hearing; defendants can know precisely when they may invoke the rule. This clarity will reduce incon- sistent rulings, curb dilatory litigation, and ensure the proper administration of justice in the adversarial system.