Refining the Primor Principles: Two-Year Dormancy Rule as the Yardstick for Strike-Out

Introduction

Case Name: Kirwan v Connors & ors (Approved) [2025] IESC 21 (Supreme Court of Ireland)
Date: 30 May 2025
Court Composition: O’Donnell C.J., Dunne, Charleton, O’Malley, Hogan, Murray & Collins JJ.
Core Issue: Whether the long-established “Primor” framework for dismissing actions for undue delay should be adjusted in light of Ord. 122, r.11 RSC and subsequent jurisprudence.

Kirwan v Connors arises from a protracted dispute over a failed 2006 property transaction in Wexford. After initial negotiations between Mr Brendan Kirwan and Mr Eamonn Buttle (later assigned to Filbeck Limited), multiple related proceedings were commenced in 2011–2013. A High Court adjournment in December 2013 promised Mr Kirwan a final opportunity to present his entire case. Instead, his claims lay dormant for over four years. The defendants applied to dismiss the combined action and related claims for want of prosecution. The High Court (Meenan J.) and then the Court of Appeal (Power J.) held that the delay was “inordinate and inexcusable” and struck out the proceedings.

Summary of the Judgment

The Supreme Court, by a majority (O’Donnell C.J. and Hogan J. delivering the lead judgment), adjusted the three-stage “Primor” test for striking out on grounds of delay. Key findings:

The courts have an inherent jurisdiction to strike out proceedings for undue delay, in aid of their Article 34.1 duty to administer justice.
Ord. 122, r. 11 RSC—a positive rule authorizing dismissal where no “proceeding” occurred for two years—must serve as the primary yardstick for measuring inordinate delay.
Once two years of inactivity have elapsed, delay is prima facie “inordinate and inexcusable.” This creates a rebuttable presumption in favor of dismissal unless the plaintiff adduces a satisfactory excuse or justification.
In this case, after the December 2013 adjournment, Mr Kirwan took no meaningful step until August 2018. He failed to excuse over four years of further inactivity. The adjusted Primor framework thus required dismissal of his claims.

Analysis

Precedents Cited

Primor Plc v. Stokes Kennedy Crowley [1996] 2 IR 459: Established the three-prong test for dismissal—(i) inordinate delay; (ii) inexcusable delay; (iii) whether the balance of justice favors striking out.
O’Domhnaill v. Merrick [1984] IR 151: Recognized an exceptional inherent jurisdiction to dismiss for very long delays even where the plaintiff is blameless.
Toal v. Duignan (No.1) [1991] ILRM 135; Toal v. Duignan (No.2) [1991] ILRM 140: Confirmed that lengthy delay alone—absent plaintiff fault—may justify dismissal if defendants cannot fairly defend.
Order 122, r. 11 RSC: Provides that if no “proceeding” occurs for two years, a defendant may apply to dismiss for want of prosecution.
Various personal-injury and commercial cases (e.g., Dowd v. Kerry County Council, McBrearty v. NW Health Board, Anglo-Irish Beef Processors Ltd. v. Montgomery) illustrating evolving judicial intolerance of delay and the growing importance of Article 6 ECHR and speed of justice.

Legal Reasoning

The Court’s reasoning unfolded in three stages:

Inherent Jurisdiction Confirmed: The High Court’s power to dismiss for undue delay is rooted in its constitutional duty (Article 34.1) to administer justice effectively and protect against process abuse. This inherent power coexists with specific rules of court (Ord. 27, 36, 122).
Ordinal Rule as Primary Yardstick: Ord. 122, r. 11’s two-year inactivity threshold must be the default measure of “inordinate” delay. While not automatic, once two years pass with no step taken, dismissal becomes the presumptive remedy.
Rebuttable Presumption & Reformed Test: Delay of two years or more shifts the burden onto the plaintiff to justify non-dismissal. Permissible excuses (e.g., serious illness, minority, active engagement with opposing party, mediation) must be pleaded and proved. Excessive delays (e.g., four years of dormancy after final adjournment) are seldom excusable.

Impact on Future Cases

This decision restructures the delay jurisprudence:

Litigants will face a clear two-year “dormancy rule” as the first trigger for dismissal risk.
Plaintiffs who seek adjournments should expect prescriptive timetables and “unless” orders to avoid dormancy.
Counsel and parties will be incentivized to use active case-management tools (notices for trial, pleadings schedules) if they wish to protect their litigation from being struck out.
The “exceptional” O'Domhnaill v. Merrick strand remains for truly stale cases where fair trial is impossible, but is unlikely to apply in most commercial and personal-injury claims.
The Superior Court Rules Committee may consider amending Ord. 122 to elaborate permissible excuses and procedures for obtaining relief from the dormancy presumption.

Complex Concepts Simplified

Inherent Jurisdiction: Courts hold the power, apart from any written rule, to manage their own procedures and protect the fair administration of justice. This includes dismissing cases that have become unreasonably delayed.
Order 122, Rule 11: A tailored rule stating: if no formal step in a case occurs for two years, the opposing party can ask the court to dismiss the action for “want of prosecution.” It also lets the court impose other terms it considers just.
“Inordinate and Inexcusable” Delay: Delay that exceeds normal limits (two years under Rule 11), is without good reason, and seriously prejudices the opposing side’s ability to prepare its case or to enjoy the fair trial a court must guarantee.

Conclusion

By re-anchoring the strike-out test in the positive two-year dormancy rule of Ord. 122, r. 11, the Supreme Court has clarified and strengthened judicial tools against dilatory litigation. Absent compelling excuse, failure to take any step for two years or more generates a presumption of inordinate delay ripe for dismissal. Parties and practitioners must now be vigilant: remaining passive invites irreversible loss of access to the courts. This judgment marks a decisive shift away from decades of “endless indulgence” and toward a civil justice system that demands timely prosecution and preserves resources for litigants who do not rest on procedural rights.