Prolonged Inactivity: Unilateral Deferral Pending Related Litigation Does Not Justify Preserving a Stale Claim

1. Introduction

This judgment applies the Supreme Court’s revised approach to dismissal for want of prosecution in Kirwan v. Connors [2025] IESC 21. Its central holding is that a plaintiff’s unilateral decision to suspend proceedings while awaiting the outcome of related litigation does not, without more, provide an exceptional justification for more than five years of procedural inactivity.

The plaintiff sued his former solicitors, practising as John J. Quinn & Co. Solicitors, over their handling of a 2007 property purchase. The defendants sought dismissal after a continuous period exceeding five years and eight months during which no procedural step had been taken. The High Court dismissed the proceedings, finding no exceptional circumstance or pressing requirement of justice sufficient to preserve them.

The judgment also contains a distinct procedural ruling on generative artificial intelligence. Applying the recently introduced High Court Practice Direction 142 (“HC 142”), the court exceptionally dispensed with the prescribed declaration concerning AI use and admitted a narrowly focused affidavit exhibiting documents.

2. Background and Procedural History

In April 2007, the plaintiff retained the defendants in connection with the proposed purchase of approximately 29 hectares of land. He contracted to buy the property for €3 million and obtained a €2.6 million loan offer from Allied Irish Banks plc (“AIB”). The intended repayment source was the proceeds of development. Following the purchase, the plaintiff discovered that the property was landlocked and unsuitable for development.

The plaintiff subsequently alleged professional negligence and associated breaches of duty. His pleaded relief included damages and an indemnity against claims arising from separate proceedings brought against him by AIB.

The plaintiff maintained that the proceedings had never been abandoned. He said that professional advice supported determining the AIB litigation first, that he had repeatedly asked his solicitors to progress matters, and that a fair trial remained possible. He offered to comply with a strict timetable.

The defendants denied any agreement to suspend the proceedings. They argued that the prolonged inactivity was sufficient for dismissal without proof of specific prejudice and that, in any event, a trial would require recollection of advice allegedly given almost twenty years earlier.

3. Summary of the Decision

Cahill J. held that the proceedings fell within the most serious category identified in Kirwan v. Connors: more than five years of complete inactivity. The plaintiff therefore had to establish an exceptional justification or a pressing exigency of justice requiring a trial. He had not done so.

• Private communications with solicitors, complaints about their conduct and preparatory work did not constitute procedural prosecution of the claim.
• The connection with the AIB litigation did not establish an agreed standstill or justify a unilateral suspension.
• The defendants did not have to establish specific prejudice or prove that a constitutionally acceptable trial was impossible.
• The plaintiff’s continuing intention to pursue the claim and its asserted merits did not answer the relevant inactivity.
• An offer to proceed under an expedited timetable came too late in these circumstances.

The dismissal did not determine whether the defendants had been negligent. It terminated the claim because of delay. The judge’s view that the defendants should recover the application’s costs was provisional; costs and final orders were reserved for a further hearing on 19 October 2026.

4. Precedents Cited and Their Influence

4.1 Kirwan v. Connors [2025] IESC 21

This was the controlling authority. Cahill J. treated the majority judgments as firmly establishing a simplified framework that gives independent weight to the passage of time. The objective is to avoid unnecessarily elaborate dismissal applications and recognise that delay itself undermines the just administration of litigation.

The framework reproduced in the judgment distinguishes four broad positions:

Murray J.’s summary, also quoted by Cahill J., referred to five years or more of cumulative and unexplained inactivity, including a continuous block of at least two years of complete or near-complete procedural inactivity. No boundary question arose here: the undisputed single period exceeded five years and eight months.

The Supreme Court’s illustrations of circumstances potentially justifying continuation included exceptional disadvantage affecting a plaintiff’s ability to progress proceedings, unusual public-law litigation demanding determination in the public interest, and serious misconduct by a defendant during the proceedings. These illustrations show why the jurisdiction is not an automatic limitation rule, while underlining the demanding nature of the exception.

The factual comparison was also important. Kirwan v. Connors itself concerned solicitors’ negligence and resulted in unanimous dismissal after a shorter period of inactivity exceeding four years. There was no identified missing witness, unavailable evidence or witness asserting an inability to remember. The ordinary deterioration associated with delay in a case requiring oral testimony was sufficient. The present plaintiff could not therefore insist on proof of a particular lost document or failed recollection.

4.2 Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459

This authority supplied the earlier “Primor test” for prosecutorial delay. Its significance here was historical and structural: Kirwan v. Connors reformulated that approach to simplify applications and give greater weight to inactivity itself.

Cahill J. accordingly applied the Supreme Court’s newer framework rather than allowing the application to become a wide-ranging inquiry into every aspect of prejudice, responsibility and the underlying claim. The judgment demonstrates the practical consequences of that reformulation.

4.3 O'Domhnaill v. Merrick

This case identifies a distinct jurisdiction concerned with whether delay prevents a constitutionally acceptable, genuine trial on the merits. Its role was principally to mark the boundary between two different reasons for terminating proceedings.

The plaintiff repeatedly argued that a fair trial remained possible. That did not answer the defendants’ application. Under the prosecutorial-delay jurisdiction, prolonged inactivity may justify dismissal even without proof that the trial process has become constitutionally inadequate.

4.4 Beatty v. Beatty [2026] IESC 37

Cahill J. cited this recent Supreme Court decision as clarifying the fair-trial jurisdiction associated with O'Domhnaill v. Merrick. It reinforced, rather than displaced, the distinction: the present application concerned failure to prosecute under Kirwan v. Connors, not an application requiring proof that no true trial could occur.

5. Analysis of the Legal Reasoning

5.1 The established period of inactivity determined the applicable standard

The decisive starting point was uncontested. No procedural step had occurred between 13 November 2019 and 17 July 2025. That placed the case firmly within the category requiring an exceptional justification for continuation.

The defendants therefore did not have to assemble additional evidence of prejudice before the plaintiff was required to explain why the proceedings should survive. The plaintiff’s burden concerned a pressing reason to preserve the action, not merely an assertion that the defendants could still defend it.

The preceding chronology intensified the concern. Approximately seven years elapsed between the underlying events and service of proceedings, and more than nineteen years had passed by the hearing. However, the court did not treat every part of that interval as inactivity attributable to the plaintiff. The independent and sufficient foundation was the later continuous period exceeding five years and eight months.

5.2 Responsibility remained with the plaintiff

The plaintiff relied on instructions to his solicitors, complaints to the Legal Services Regulatory Authority and difficulties obtaining his file. He also referred to the need for an expert report and the effects of the Covid pandemic, while accepting that the pandemic did not explain the whole delay.

The court distinguished internal activity from prosecution of proceedings. Correspondence with advisers may demonstrate concern about litigation, but it does not advance the claim procedurally against the opposing party.

On these facts, no exceptional personal circumstance was established. The plaintiff could change or discharge his advisers and had done so. Correspondence from 2020 also demonstrated his awareness of the delay and its potential consequences. Alleged shortcomings by his representatives therefore did not discharge the burden.

This reasoning does not eliminate the exceptional-circumstances qualification recognised in Kirwan v. Connors. It establishes that the explanations advanced here did not satisfy it.

5.3 Related litigation did not create a standstill

The plaintiff’s strongest substantive explanation was the relationship between the negligence claim and the AIB proceedings. His claim included an indemnity against AIB’s demands, and he maintained that determining the bank litigation first would avoid unnecessary proceedings or double recovery.

The court did not decide that sequencing related claims is inherently improper. It expressly recognised that parties might agree to suspend proceedings pending another case and that such an agreement could be relevant to a later dismissal application.

The difficulty was evidential and practical: there was no proof of any communication, discussion, agreement or acquiescence by the defendants. Pleading an indemnity did not notify them that the action would remain dormant, still less establish their agreement to that course. They had requested information about the AIB proceedings without receiving the promised material.

Nor was the plaintiff’s account entirely consistent. An intentional suspension on legal advice was difficult to reconcile with complaints that solicitors had disregarded instructions to advance the proceedings.

The operative holding was therefore narrow but important: an objectively connected case, professional advice and the plaintiff’s private understanding did not justify a unilateral suspension exceeding five years. The judge did not hold that only a formally written standstill could matter. She also reserved doubt about whether even an agreed arrangement would justify delay of this magnitude.

5.4 Intention to continue was not procedural progress

The plaintiff emphasised that he had never abandoned the action and had not been personally indifferent. The court rejected abandonment as the relevant inquiry. A litigant may sincerely intend to pursue a claim while taking no qualifying procedural steps for an unacceptable period.

This distinction gives the jurisdiction an objective focus: the court examines what was done to prosecute the claim, rather than attempting to reconstruct a party’s private plans.

5.5 Prejudice was unnecessary, but evidential concerns existed

Because the case fell within the longest-delay category, proof of prejudice was unnecessary. Nevertheless, the court identified reasons why a largely documentary characterisation of the dispute was unconvincing.

The plaintiff alleged that one defendant had advised him in April 2007 that the agreement with the vendors was not binding and could safely be signed. The defence asserted that a binding agreement was accepted to exist before the defendants were retained. That was a material factual conflict likely to require oral evidence.

A conveyancing file could not necessarily resolve what advice had been given or understood. The anticipated trial might not take place until late 2027 or early 2028, more than twenty years after the transaction. These concerns reinforced dismissal, but were not indispensable to it.

5.6 Neither merits nor a late timetable displaced the delay

The plaintiff relied on advice that his case was stateable and arguable. Cahill J. declined to evaluate its merits, consistently with the simplified approach required by Kirwan v. Connors. A dismissal application should not ordinarily become a preliminary trial of professional negligence.

The proposed expedited timetable was likewise insufficient. Case-management directions remain an available response in suitable cases, but an offer to comply with them does not automatically overcome an already established exceptional period of inactivity.

The judge also declined to find tactical delay. No specific advantage obtained by the plaintiff was identified, and tactical wrongdoing played no part in the dismissal. Bad faith was not a prerequisite.

5.7 Order 122, rule 11 and the inherent jurisdiction

The application invoked Order 122, rule 11 of the Rules of the Superior Courts. That rule requires notice of intention to proceed following one year without a proceeding and permits a defendant to seek dismissal after two years.

However, the rule does not exhaust the court’s inherent power to dismiss for prosecutorial delay. The two sources of jurisdiction coexist.

The judgment also emphasises that not every litigation-related act interrupts inactivity. A notice of change of solicitor or notice of intention to proceed does not itself constitute a qualifying proceeding. Relevant progress requires substantive procedural steps under the rules, such as delivery of pleadings or a notice of trial; internal engagement with advisers is insufficient.

6. The Separate Ruling on AI-Assisted Affidavits

6.1 The requirements of HC 142

HC 142 took effect on 1 September 2026. It requires particular caution when generative AI assists in preparing affidavits or witness statements. Evidence must reflect the witness’s own knowledge, recollection and account.

Unless the court directs otherwise, an affidavit must declare that generative AI has not generated its substantive content. The prescribed declaration expressly addresses altering, embellishing, strengthening, diluting or rephrasing evidence. Administrative assistance, such as formatting or spell-checking, does not prevent the declaration being made.

6.2 Why the court admitted this affidavit

The plaintiff disclosed that he had used AI to help formulate parts of his third affidavit and organise its exhibits. Although he said that he had checked and adopted its contents, he was unwilling to make a declaration whose accuracy he did not fully understand.

The court exercised the express power to dispense with the declaration because:

• the affidavit’s limited purpose was to introduce and explain approximately 42 pages of documents;
• it contained no factual account extending beyond explanations of those documents;
• the plaintiff had been candid about his specific use of AI;
• the practice direction was newly operative; and
• the plaintiff was representing himself.

The court separately granted leave for the late affidavit. It accepted the explanation that the plaintiff had only recently learned that the defendants would not include the documents in the hearing books.

6.3 Limits of the ruling

This was a fact-specific judicial dispensation, not general approval of AI-generated witness evidence. The court did not hold that checking and adopting AI-assisted wording always satisfies HC 142, or that rephrasing substantive evidence is merely administrative assistance.

Its significance lies in the transparent use of the practice direction’s express flexibility. Admission of the affidavit also demonstrates that procedural accommodation and dismissal of the underlying action were separate questions.

7. Potential Impact

• Protective proceedings require active management. Issuing an action to preserve a potential remedy does not permit indefinite dormancy while related litigation proceeds.
• Sequencing should be communicated and documented. Parties contemplating suspension should seek an agreed or court-managed arrangement. This judgment does not guarantee that an agreement will justify very prolonged delay.
• Specific evidential loss is not always necessary. Under the longest-delay category, a defendant need not identify a missing witness or document.
• Document-heavy claims remain vulnerable. The presence of extensive records does not itself answer the independent significance of prolonged inactivity.
• Earlier defence delay is not a complete answer. The court acknowledged some slowness by the defendants, but it did not explain the later continuous inactivity.
• AI exceptions require judicial authorisation. Candour and narrowly defined evidential content supported relief here; parties should not assume that the required declaration can simply be omitted.

The decision applies rather than originates the Supreme Court’s general framework. Its particular contribution is the rejection of unilateral suspension pending connected proceedings as an adequate justification on these facts, alongside an early, carefully confined application of HC 142.

8. Complex Concepts Simplified

Want of prosecution

Failure to advance a court claim through the procedural steps needed to bring it to trial.

Pressing exigency of justice

An exceptional and compelling reason why a very delayed case should still be heard, not simply the ordinary wish to obtain compensation.

Standstill

An arrangement to pause litigation. One party’s private decision to wait is not an agreement with the other party.

Indemnity

A claim that another person should reimburse or protect the claimant against specified liabilities. Pleading one does not itself suspend proceedings.

Prejudice

Disadvantage caused by delay, including weaker recollection or unavailable evidence. In sufficiently prolonged inactivity cases, separately proving it is unnecessary.

Inherent jurisdiction

The court’s power to control its own proceedings, which is not confined to powers expressly stated in procedural rules.

9. Conclusion

The decisive principle is that a live intention to pursue a claim is not a substitute for procedural action. Following more than five years and eight months of complete inactivity, neither connected litigation, private dealings with advisers, asserted merits nor a late timetable established a pressing reason to preserve this claim.

The judgment reinforces the independent importance of timely prosecution while preserving the distinction between dismissal for delay and adjudication of liability. Its AI ruling is similarly measured: flexibility was available through an express judicial direction, but only on the particular affidavit and circumstances before the court.