Retrospective Leave under Section 6 IBRC Act 2013 and the Kirwan Delay Framework:
Commentary on Pounds & Philpott v Irish Bank Resolution Corporation (in Special Liquidation) & KPMG [2025] IEHC 720

1. Introduction

The decision of Gillane J in Pounds & Philpott v Irish Bank Resolution Corporation (in Special Liquidation) & KPMG [2025] IEHC 720 sits at the intersection of three important strands of Irish law:

• the operation of section 6 of the Irish Bank Resolution Corporation Act 2013 (“IBRC Act 2013”) and the requirement for court leave to sue a bank in special liquidation;
• the newly reformulated test for dismissal for want of prosecution and delay as set out by the Supreme Court in Kirwan v Connors [2025] IESC 21; and
• the procedural discipline expected in complex financial litigation, particularly where years of inactivity and unparticularised allegations are involved.

The plaintiffs, Ms Anne Pounds and Mr Liam Philpott, sued:

• Irish Bank Resolution Corporation (IBRC), in special liquidation, as successor to Irish Nationwide Building Society (INBS) and Anglo Irish Bank; and
• KPMG, the firm providing special liquidation services to IBRC.

The underlying dispute arose out of two interest-only loans granted by INBS to Mr Philpott in 1990 and 1994, secured on farmland and farm buildings at Buttevant, Co. Cork, and linked to endowment policies. Mr Philpott had, over many years, raised complaints concerning:

• alleged mis-selling of endowment products and insurance;
• the handling of shortfalls after maturity of the loans;
• a crucial 2012 IBRC letter erroneously stating that “all loans” relating to the property had been repaid;
• the subsequent sale of his loan by IBRC to Shoreline Residential/ Shoreline DAC, and later actions by servicer Pepper culminating in enforcement steps in 2024; and
• the alleged misclassification of a 1930s haybarn as a residential investment property, including the assignment of an Eircode.

Against this factual backdrop, the procedural history was, in the judge’s words, “as extraordinary as it is unacceptable” (para. 1). A plenary summons issued in September 2015, but no statement of claim was ever delivered and no procedural steps were taken for almost nine years, until 2024.

Four motions came before the High Court:

1. IBRC’s motion to strike out the proceedings for failure to obtain leave under s. 6 IBRC Act 2013.
2. KPMG’s motion to strike out the proceedings for failure to comply with s. 6, invalid service, and inordinate and inexcusable delay.
3. Plaintiffs’ motion seeking:
   • retrospective leave under s. 6 to continue proceedings against IBRC, and
   • joinder of the Minister for Finance, the Attorney General, and Ireland (“the proposed State defendants”).
4. Plaintiffs’ declaratory motion of August 2024 seeking wide-ranging declarations relating principally to the classification of the Buttevant lands and the status of the loans (listed for mention only pending the other motions).

The judgment provides a robust application of the new Kirwan delay framework within the s. 6 IBRC Act leave jurisdiction, and clarifies that section 6 applies equally to consumer/“small borrower” cases as to large commercial actions. It also illustrates the consequences of failing to particularise claims and of attempting to “revive” dormant proceedings many years later in response to enforcement action by a purchaser or loan servicer.

2. Summary of the Judgment

Gillane J made the following key orders (para. 158):

• Refused leave to the plaintiffs to continue proceedings against IBRC under s. 6 IBRC Act 2013.
• Struck out the proceedings against KPMG for inordinate and inexcusable delay.
• Refused the application to join the Minister for Finance, the Attorney General and Ireland as defendants.
• Struck out the plaintiffs’ declaratory motion of 16 August 2024.

The core findings were:

• The plaintiffs commenced proceedings in 2015 without first obtaining leave under s. 6(2)(b) IBRC Act 2013, which is required to sue IBRC after the making of the special liquidation order (paras. 57–63).
• While the court has jurisdiction to grant retrospective leave, that discretion must be exercised in line with the “right and fair” test drawn from earlier Companies Act jurisprudence and s. 6 case law (Wright‑Morris, MJBCH, McCaughey) (paras. 64–76).
• The plaintiffs had not met even the low threshold of a “stateable claim” against IBRC: the plenary summons was vague; no statement of claim had been delivered; and a multiplicity of complaints never coalesced into a coherent pleaded cause of action (paras. 126–129).
• Separately, applying the Supreme Court’s new test in Kirwan v Connors, the court held that the delay was inordinate, unexplained, and inexcusable; there had been almost nine years of procedural inactivity and nearly seven years with no correspondence to IBRC, far beyond the most serious threshold identified in Kirwan (paras. 88–91, 125).
• On that basis, any attempt to proceed would be futile, as a motion to dismiss for want of prosecution would “inevitably” succeed. That futility was a distinct and compelling reason to refuse leave under s. 6 (paras. 85, 125, 137–138).
• KPMG, although also raising s. 6 and service arguments, likewise benefited from a strike-out for inordinate and inexcusable delay, with additional evidence of actual prejudice (retirement and death of key personnel) (paras. 140–145).
• The attempt to join State defendants was refused: no cause of action was articulated, the timing suggested a reactive tactic to the defendants’ strike-out motions, the declaratory reliefs sought could not practically be granted against the State, and any arguable claims appeared to be statute-barred (paras. 150–154).
• The court expressed concern at the volume of serious but unparticularised allegations of fraud, corruption and criminal conduct made against a wide range of actors without evidential support, and reminded counsel that such accusations should not be advanced without a proper foundation (paras. 155–157).

3. Analysis

3.1 Statutory and Doctrinal Framework

3.1.1 Section 6 IBRC Act 2013

Section 6(2)(b) of the IBRC Act 2013 provides that, following the making of the Special Liquidation Order in respect of IBRC:

“no further actions or proceedings can be issued against IBRC without the consent of the Court” (para. 63).

This establishes a leave jurisdiction analogous to that in company law when a winding-up order has been made. It replaces, for IBRC, the general regime formerly contained in section 222 Companies Act 1963 (now s. 678 Companies Act 2014), which provided:

“When a winding-up order has been made or a provisional liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose.” (para. 65)

In Wright‑Morris v IBRC (in Special Liquidation) [2014] 3 IR 468, Laffoy J held that, although the wording differs, the court’s discretion under s. 6(2)(b) should be exercised in the same way as under s. 222 (para. 67). The test is whether it is “right and fair in the circumstances” to grant leave.

3.1.2 Retrospective Leave and the Right of Access to Courts

In Re MJBCH Ltd (In Liquidation) [2013] 1 IR 407, Finlay Geoghegan J addressed a key point: does failure to obtain leave before issuing proceedings render them a nullity, or can the court grant leave retrospectively?

She held that where a provision like s. 222 restricts a plaintiff’s constitutional right of access to the courts, it must be strictly construed. In the absence of express language making non-compliant proceedings a nullity or precluding retrospective authorisation, the court may grant leave after the event, validating the proceedings (paras. 68–70).

Two further propositions from MJBCH are central to this judgment:

• On a retrospective leave application, the court should proceed as if the application were made at the time the proceedings were initiated (para. 71).
• A plaintiff must not gain any advantage from having issued proceedings without leave (para. 71).

This framework is imported into the IBRC context by Wright‑Morris and followed by Gillane J.

3.1.3 The Purpose of Court Supervision in Liquidation

Quoting Finlay Geoghegan J (and, indirectly, Black LJ in Boyd v Lee Guinness [1963] NI 49), Gillane J emphasises that the purpose of such provisions is not merely the protection of creditors, but the broader goal of placing “all proceedings in relation to the company being wound up under the supervision of the court” (para. 72).

Section 6 IBRC Act 2013 thus acts as a gatekeeping mechanism in the special liquidation of IBRC, controlling which actions may proceed, balancing:

• the plaintiff’s right of access to the courts, and
• the need for orderly and final liquidation, with protection of creditors and efficient wind-up.

3.2 Precedents Cited and How They Shaped the Decision

3.2.1 Wright‑Morris v IBRC (in Special Liquidation) [2014] 3 IR 468

Wright‑Morris established the “right and fair” test and equated the court’s discretion under s. 6 IBRC Act 2013 with that under s. 222 Companies Act 1963. Gillane J accepts this as the governing standard and applies it (para. 67).

This test is inherently contextual: it directs the court to consider all the circumstances, including:

• the nature and arguability of the claim (stateable case);
• delay and its impact;
• prejudice to the liquidation and to other creditors; and
• whether the proceedings would be futile (e.g. clearly statute-barred).

3.2.2 Re MJBCH Ltd (In Liquidation) [2013] 1 IR 407

As noted, MJBCH confirms that proceedings commenced without leave are not automatically void, and that courts have jurisdiction to grant retrospective leave (paras. 68–70). It also frames the exercise of discretion in constitutional terms: limitations on access to the courts must be strictly construed and justified.

Gillane J adopts both strands:

• He assumes that retrospective leave could be granted in principle.
• He treats the application as if made at the origination of proceedings, and denies that the plaintiffs can gain any advantage from their failure to seek leave in 2015 (para. 71).

3.2.3 McCaughey v IBRC (in Special Liquidation) [2016] IEHC 661

In McCaughey, Murphy J reformulated the “right and fair” inquiry by asking whether the applicant had demonstrated a stateable claim (para. 74). She noted that:

• The threshold is low, and the court should generally take the applicant’s case “at its highest” (para. 75).
• Nonetheless, in the exercise of its inherent jurisdiction the court is not precluded from examining the underlying affidavit evidence and concluding that no stateable claim exists, in which case it would not be “right or fair” to give leave (para. 76).

Gillane J relies on these propositions in two ways:

1. He acknowledges the low threshold but insists that it is nonetheless a real threshold, not a formality.
2. He examines the plaintiffs’ affidavits and the procedural record and concludes that the claim remains at the level of mere assertion (paras. 126–129, 137).

3.2.4 David & Elizabeth Kennedy v IBRC (in Special Liquidation) (2020/310 COS)

The ex tempore decision of O’Moore J in Kennedy, though not reported, was relied upon by IBRC and summarised at paras. 78–80. There, leave under s. 6 was refused even though the plaintiffs had “just about” made out a sufficient basis for their claim of fraudulent misrepresentation, because:

• there was significant unexplained delay between the discovery of the alleged fraud in 2014 and the leave application in October 2020, and
• granting leave would have complicated the efforts of the special liquidators to complete the liquidation.

Kennedy thus illustrates that:

• Delay can, in itself, be a decisive factor in refusing s. 6 leave, even where a stateable case is marginally established.
• The progress and finality of the liquidation are legitimate and weighty considerations in the “right and fair” analysis.

Gillane J, faced with a much longer period of inactivity and an impending completion of IBRC’s liquidation, adopts a similar stance, but now firmly anchored in the Supreme Court’s Kirwan framework.

3.2.5 Una Gilligan v Faxgore Ltd (In Liquidation) [2021] IEHC 605

While dealing with liquidation under the Companies Acts rather than IBRC, Una Gilligan is important for its analysis of the “fair and just” criterion. Stack J held that:

• In general, leave should be granted unless:
  • the claim could just as conveniently be brought within the winding-up, or
  • the proceedings are frivolous, vexatious or doomed to fail (for example, clearly statute-barred) (para. 81).
• The question of potential benefit or prejudice to the applicant is best viewed as part of a wider inquiry into whether the proceedings would be futile (para. 82).

Gillane J expressly adopts this futility analysis (paras. 81–82), and then fuses it with the new Kirwan approach: if a case would inevitably be dismissed for want of prosecution, granting leave under s. 6 is by definition futile.

3.2.6 McCambridge v Anglo Irish Bank Corporation Ltd [2016] IEHC 327

In McCambridge, O’Regan J stated that to determine what is “right and fair” the court:

“must have regard to the nature of the claim being advanced by the plaintiff beyond mere assertion” (para. 83).

This is a reminder that generic allegations—particularly of serious wrongdoing—are insufficient. Gillane J cites this to underline that the plaintiffs’ undifferentiated complaints about mismanagement, mis-selling, data breaches and fraud do not crystallise into a cognisable cause of action (paras. 126–130).

3.2.7 Kirwan v Connors [2025] IESC 21

Kirwan is the pivotal Supreme Court authority on delay and dismissal for want of prosecution, whose significance in this judgment cannot be overstated. O’Donnell CJ:

• re-examined the long-standing Primor test,
• emphasised that passage of time is in itself harmful to the administration of justice, and
• set out a clearer, more structured framework for when proceedings may be dismissed for inactivity (paras. 86–90 of the judgment; paras. 26–27 of Kirwan).

The key components, as summarised by Gillane J (para. 90), are:

1. Before two years’ inactivity: dismissal only where there is abuse of process or “O Domhnaill v Merrick” level prejudice.
2. After two years’ total inactivity: a claim may be dismissed for want of prosecution; usually requires some additional prejudice or factors pointing toward dismissal.
3. After four years’ total inactivity (where oral evidence is central):
   • the claim should be dismissed unless the plaintiff shows compelling reasons why it should proceed and can be fairly tried;
   • passage of this amount of time is itself enough; the onus shifts to the plaintiff.
4. After five years’ total inactivity:
   • the court has a “generous power” to dismiss;
   • the court should feel free to do so unless there is a “pressing exigency of justice” (e.g. exceptional disadvantage, compelling public interest, or serious misconduct by the defendant).

Gillane J specifically notes that culpable plaintiff inactivity is central, and that courts should focus on what the plaintiff ought to have done and failed to do (para. 91).

In this case, the plaintiffs’ counsel sought to rely on Collins J’s dissent in Kirwan, but Gillane J makes clear that the majority’s reformulated test is binding and must be applied (para. 92).

3.3 The Court’s Legal Reasoning in Pounds & Philpott

3.3.1 Section 6 IBRC Act: Does it Apply to “Small Borrowers”?

An argument advanced for the plaintiffs was that earlier s. 6 cases primarily involved large commercial borrowers, and that the provision should not apply in the same way to building society members and “small borrowers” (para. 61).

Gillane J firmly rejects this (para. 84):

• There is nothing in the text of s. 6, nor in previous case law, to support a limitation to “large commercial” borrowers.
• The provision is aimed at all proceedings against IBRC post-liquidation, regardless of borrower profile.

This aspect of the decision is doctrinally straightforward but practically important: it confirms that consumer or member-borrowers must also comply with the s. 6 leave regime.

3.3.2 Existence of a Stateable Case

On the merits threshold, the judge is blunt. The plenary summons claimed various categories of damages—negligence, breach of duty, misrepresentation, deceit, breach of constitutional rights (para. 7)—but:

• “The precise nature of the claim … is not readily apparent from the plenary summons” (para. 8).
• No statement of claim was ever delivered (para. 9).

The plaintiffs’ 2024 declaratory motion sought a sweep of final declarations about:

• the classification of the Buttevant property as agricultural rather than residential;
• the alleged absence of default on a “top-up” loan; and
• whether the loans were properly characterised as non-performing residential mortgages (para. 117).

Gillane J viewed this as an irregular attempt to recast the proceedings in lieu of delivering a statement of claim (para. 118). He notes:

• When pressed about the absence of a statement of claim, counsel suggested there was a “draft”, and even floated the idea of providing two different statements of claim depending on joinder and “the conduct of the State” (paras. 113–114).
• No such draft was ever served on the defendants or provided to the court (para. 115).

Consequently, the court concludes:

“the issued plenary summons floats like a piece of driftwood unconnected to any viable pleaded case.” (para. 126)

The plaintiffs’ wide-ranging allegations—mismanagement, mis-selling, data breaches, conflicts of interest, fraud, impropriety in loan classification, breaches of EU law—never move beyond bald assertion (paras. 126–130). A telling example is the extensive focus on the alleged improper assignment of an Eircode to a haybarn, which is undermined by unchallenged evidence that the Eircode system did not exist when IBRC owned the loan (para. 127).

The court also notes, with concern, the late emergence of:

• unpleaded claims that s. 6 was unconstitutional and incompatible with EU law;
• a suggestion that a reference be made to the Court of Justice of the EU; and
• a proposal to join the Central Bank as a notice party, without any motion having been issued (paras. 130–133, 136).

Against the backdrop of McCaughey and McCambridge, the judge holds that the plaintiffs have not even cleared the low bar of a stateable case (para. 137).

3.3.3 Delay, Kirwan and the Futility of Granting Leave

The second—and independently decisive—pillar of the reasoning is delay.

Key factual findings include:

• The plaintiffs issued the plenary summons on 29 September 2015.
• No procedural step whatsoever was taken until the declaratory motion of 16 August 2024 (para. 10).
• No correspondence was sent to IBRC between July 2017 and May 2024, almost seven years (para. 125).
• The loans were advanced in 1990 and 1994; the loan book was sold by IBRC in 2014; IBRC entered special liquidation in 2013 (paras. 15–31).

Applying Kirwan, the judge identifies that:

• There was nearly nine years of total procedural inactivity from issuing the summons to the 2024 motion (para. 125).
• This is far beyond the five-year total inactivity threshold at the most serious end of the spectrum identified by O’Donnell CJ (para. 125).

He then scrutinises the plaintiffs’ explanations for delay, as gleaned from their affidavits:

• Ms Pounds’ claim that certain “discrepancies” (including a 2013 White Horse Mortgage Services letter) were only discovered in 2024 (paras. 97–101) is undermined by her own evidence that she spoke with a named person at White Horse in 2013 and by Mr Philpott’s contemporaneous references to that interaction in 2015 correspondence.
• Reliance on the FSPO and Data Protection Commission is unavailing: the FSPO closed the relevant complaint in 2018 and explicitly directed Mr Philpott that the issues were more suitable for plenary litigation before the courts (para. 105).
• Health difficulties personally experienced by Ms Pounds from late 2017 are:
  • only raised in 2025;
  • unsupported by medical evidence; and
  • incapable of explaining the initial two-year delay from 2015–2017 or the inactivity attributable to Mr Philpott (paras. 108–109).

Crucially, the judge concludes that the proceedings were deliberately “parked” and only “revived” once Pepper, acting for Shoreline, began enforcement steps in 2024:

• The timing of the 2024 declaratory motion strongly suggests that its purpose was to re‑activate dormant proceedings in reaction to Pepper’s actions (paras. 119–121, 125).
• This is effectively confirmed by counsel’s concession that the case had been “revived” and “triggered” by Pepper’s conduct, and by a submission that there was “no damage arising” until Pepper acted “like a rogue” (paras. 120–122).
• When the court characterised the proceedings as “dead” until Pepper’s involvement, counsel could “neither agree nor disagree” (para. 123).

On this evidence, Gillane J finds that the delay was:

• Inordinate: measured against the Kirwan thresholds, nine years of inactivity is exceptional (para. 125).
• Unexplained: the proffered reasons are incoherent, contradicted by documentary evidence, or irrelevant (paras. 96–105, 108–110, 125).
• Inexcusable and strategic: the judge is “satisfied that the delay was a conscious and deliberate strategic choice that does not arise from some lack of understanding, infirmity or disability” (para. 125).

He further notes that no “exigency of justice” or “exceptional situation” of the kind contemplated by O’Donnell CJ (e.g. serious educational or social disadvantage; compelling public-law issue; serious defendant misconduct) has been identified (para. 125).

In addition, the judge records but does not rely heavily upon evidence of specific prejudice:

• IBRC has been in liquidation for twelve years; the liquidation is almost complete; the bank sold the relevant loan ten years ago; relevant staff are no longer employed (paras. 93–94).
• KPMG has lost key personnel through departure and death, including a senior director closely involved with IBRC (para. 143).

Taking all this together, he concludes that any proceedings allowed to continue would be bound to be struck out on a motion to dismiss for want of prosecution applying Kirwan (para. 138).

Therefore, even apart from the lack of a stateable case, it would be futile to grant leave under s. 6 (paras. 85, 125, 137–138).

3.3.4 KPMG: Delay, Prejudice and Service

KPMG’s motion raised three grounds:

1. Failure to obtain leave under s. 6 IBRC Act 2013 (on the basis that KPMG was being sued as “agent” of IBRC).
2. Invalid service of the summons.
3. Inordinate and inexcusable delay.

Counsel for KPMG adopted IBRC’s submissions on delay and developed evidence of specific prejudice:

• relevant employees who handled IBRC’s liquidation and loan issues are no longer with the firm;
• two significant individuals, including a senior director heavily involved with IBRC, have died; and
• KPMG’s role was limited to advisory and administrative services; it had no role in classifying loans as performing or non-performing, or in the inclusion of individual loans in a particular portfolio (paras. 143–144).

On this basis, Gillane J holds that, for the same reasons as IBRC, the claim against KPMG must be struck out for inordinate and inexcusable delay (para. 141). This obviates the need to decide:

• whether s. 6 applies to KPMG as an “agent” (para. 142), or
• whether the proceedings were in fact validly served.

Nonetheless, an incident concerning service further illustrates the court’s concerns about the plaintiffs’ litigation conduct. KPMG maintained, consistently, that they had not been served. Mid-hearing, counsel was suddenly presented with an affidavit of service sworn on 26 August 2024—nine years after the alleged service (paras. 145–147).

Gillane J describes this as a “staggering development” and accepts KPMG’s submission that it underscores a lack of confidence that the plaintiffs would prosecute the case with necessary efficiency if it were permitted to proceed (paras. 147–148).

3.3.5 Refusal to Join the State and Strike-Out of Declaratory Motion

Once the proceedings against IBRC and KPMG were struck out, the application to join the Minister for Finance, the Attorney General and Ireland was, as the judge notes, largely academic (para. 150). However, he makes several important observations.

First, on timing and motive:

• The application to join the State defendants, and the related August 2024 declaratory motion, post-dated the strike-out motions by IBRC and KPMG (para. 151).
• The judge infers that these applications were precipitated by the defendants’ motions, not by any newly discovered cause of action (para. 151).

Second, on legal test and pleadings:

• The requirements of Order 15, rule 5 RSC (joinder of co-defendants) were not addressed at all in the plaintiffs’ submissions (para. 152).
• No clear date was given for when a cause of action might have accrued against the proposed State defendants (para. 152).
• The declaratory reliefs sought—in particular, declarations about the classification of the Buttevant land and the performance status of the loans—could not practically be given effect to by the State (para. 153).

Third, the State’s substantive submissions:

• Counsel for the proposed State defendants argued that no cause of action had been identified against them (para. 153).
• Even if any arguable complaint could be extracted from the affidavits, it would be manifestly statute-barred (para. 154), though the judge does not need to decide that definitively.

In light of the overall dismissal of the main action, the judge refuses the joinder application and also strikes out the standalone declaratory motion (para. 158).

3.3.6 Judicial Comments on Litigation Conduct

The judgment is notable for its measured but clear criticism of the plaintiffs’ litigation conduct and, to some extent, of the forensic approach adopted on their behalf.

Among the concerns identified:

• Non-compliance with directions: late affidavits (such as the 4 November 2025 affidavit from Ms Pounds without leave), and late service of written submissions (para. 13).
• Failure to plead: no statement of claim in ten years; an attempt instead to recast the case via a motion seeking final declaratory relief (paras. 9–10, 117–118).
• Unsubstantiated serious allegations: wide-ranging accusations of fraud, dishonesty, criminal behaviour, and deceit of the IMF, Central Bank and “Europe” by both defendants and proposed State defendants, generally without evidential basis and often raised for the first time during oral submissions (paras. 155–157).

While careful not to stifle robust advocacy, Gillane J concludes:

“While counsel should always be free to make a robust presentation of their case, I will confine myself to saying that allegations of this sort, without an evidential basis, ought not be made in this way.” (para. 157)

This functions as a reminder of the professional and ethical responsibilities associated with alleging fraud or criminality, particularly against institutions in post-crisis financial litigation.

4. Impact and Significance

4.1 Consolidation of Section 6 IBRC Act Jurisprudence

This judgment reinforces and extends the line of authority on s. 6 IBRC Act 2013:

• It unequivocally confirms that all plaintiffs—including individual borrowers and building society members—must obtain leave to sue IBRC after the special liquidation order (para. 84).
• It embeds within the s. 6 jurisdiction the dual inquiry of:
  • merits (whether a stateable case has been shown); and
  • practical utility (whether, in light of delay and other factors, the claim would be futile),
  drawing from Wright‑Morris, McCaughey, Una Gilligan, and MJBCH.
• It confirms that the “stateable case” threshold, although low, is real: a bare plenary summons with no developed pleading, maintained over nearly a decade, will not suffice (paras. 126–137).

In practice, this will likely discourage late or opportunistic attempts to revive old, unparticularised complaints about IBRC years after the events and after the sale of loan portfolios.

4.2 Early Application of the Kirwan Delay Framework

As one of the first significant High Court applications of Kirwan v Connors, the judgment signals how lower courts may internalise the Supreme Court’s call to give to the passage of time.

Key implications include:

• The four- and five-year inactivity thresholds will be treated as serious markers. Nine years of inactivity, as here, is almost certain to prove fatal absent truly exceptional circumstances.
• Where there has been prolonged inactivity, courts may move relatively swiftly to strike out proceedings or refuse leave, without requiring elaborate proof of specific prejudice, especially where oral evidence and witness recollection would be central.
• Litigants must understand that issuing a plenary summons does not create an indefinite “placeholder”: they have a responsibility to progress proceedings, not just an interest (para. 88).

In the IBRC context, this dovetails with the need for finality in special liquidation, but the approach will also be influential in general civil litigation.

4.3 Litigation Against Entities in Special Liquidation

For parties contemplating litigation against IBRC (or, by analogy, other financial institutions in resolution or liquidation), this case underscores that:

• Claims arising from loans acquired and later sold by IBRC must be prosecuted promptly.
• Where loans have been sold to third parties, complaints about:
  • post-sale loan management;
  • classification by current servicers or purchasers (e.g. Pepper, Shoreline); or
  • enforcement actions
  should in general be directed against those current holders, not the former institution that no longer has any interest in the loan (paras. 31–32, 52–54).
• Section 6 leave will not be granted if proceedings are used as a vehicle to pursue grievances about what current private entities are doing under loan contracts they lawfully acquired a decade earlier.

The decision therefore contributes to the legal finality of the IBRC special liquidation, limiting exposure to late-emerging or reactive claims.

4.4 Constraints on Joinder of State Defendants

The unsuccessful attempt to join the Minister for Finance, the Attorney General and Ireland also has wider implications:

• State defendants cannot be added lightly to disputes that are, in substance, private-law conflicts between borrowers and financial institutions.
• Applicants must engage with the technical requirements of Order 15 rule 5, including identifying:
  • a specific cause of action;
  • when it accrued; and
  • why the State’s presence is necessary to “enable the court effectually and completely to adjudicate upon and settle all the questions involved”.
• Attempts to recast ordinary contract or mis-selling disputes as constitutional or EU law challenges to statutory instruments (such as the IBRC Act 2013 or Directive 2001/24/EC) will require properly pleaded grounds and coherent arguments, not generic references to “breaches of EU law”.

4.5 Professional Responsibility and Allegations of Misconduct

Finally, the judgment may be cited as a cautionary authority on litigation tactics in post-crisis financial disputes:

• Counsel and parties are reminded that serious allegations—fraud, corruption, criminal conduct, deception of international institutions—must be underpinned by evidence, not conjecture.
• Courts will be increasingly less tolerant of pleadings and submissions that are diffuse, accusatory and unparticularised.
• Such conduct can feed into the court’s assessment of:
  • whether a case is stateable at all; and
  • whether it is “right and fair” to permit litigation to continue against liquidating entities and State bodies.

5. Complex Concepts Simplified

5.1 What is Section 6 IBRC Act 2013 and Why Does “Leave” Matter?

When IBRC was placed into special liquidation during the post-2008 banking crisis, the IBRC Act 2013 introduced special rules. Section 6(2)(b) says that, after the special liquidation order is made:

• you cannot start or continue court proceedings against IBRC unless you first obtain the consent (“leave”) of the High Court.

The idea is that all disputes involving IBRC are supervised by the court and managed in a way that does not derail the orderly winding up of the bank and the fair treatment of its creditors.

5.2 What is “Retrospective Leave”?

Ideally, a plaintiff should apply for leave before issuing proceedings. However, if proceedings were started without leave, the court can:

• consider an application made later, and
• if appropriate, grant leave that validates the proceedings after the fact.

This is called retrospective leave. But when deciding whether to grant it, the court treats the application as if it had been made at the start and ensures the plaintiff does not gain any advantage from having bypassed the leave requirement.

5.3 What is a “Stateable Case”?

A stateable case is a claim that, if you take the plaintiff’s facts “at their highest”, could arguably succeed in law. The threshold is low:

• the court does not decide whether the plaintiff will win, only whether their case is more than pure assertion.

But there must still be:

• identifiable causes of action (e.g. negligence, misrepresentation, breach of contract), and
• some factual basis supporting each alleged wrong.

In Pounds & Philpott, the court found that this minimum standard was not met: over a decade on, no statement of claim had been served and the complaints remained diffuse and unparticularised.

5.4 What is “Inordinate and Inexcusable Delay” Under Kirwan?

Under Kirwan v Connors:

• “Inordinate” delay means the time taken is far longer than what is reasonably required to progress a case.
• “Inexcusable” means the plaintiff cannot provide a convincing justification for that delay.

Kirwan introduced clear guideposts: once there has been four or five years of total inactivity, the court will typically dismiss the case unless the plaintiff can show compelling reasons why it must be allowed to proceed and can be tried fairly. After five years of inactivity, only a “pressing exigency of justice” will normally save the claim.

5.5 What is “Futility” in the Context of Leave to Sue?

When deciding whether to grant leave under s. 6 (or under company liquidation provisions), the court considers whether allowing the claim to proceed would confer any meaningful benefit or whether the claim is doomed to fail—for example, because:

• it is clearly statute-barred;
• it is frivolous or vexatious; or
• it would inevitably be struck out for inordinate delay.

If the answer is that the claim will in any event be dismissed later, then granting leave now would be futile, and the court may refuse.

5.6 What is Joinder Under Order 15 Rule 5 RSC?

Order 15, rule 5 of the Rules of the Superior Courts allows a person to be added as a defendant where:

• their presence is necessary to effectually and completely adjudicate upon and settle all the questions involved in the proceedings.

To succeed on a joinder application, a plaintiff must:

• identify a specific cause of action against the proposed new defendant;
• indicate when and how that claim arises; and
• explain why the existing defendants are not sufficient to determine all issues.

In this case, that analysis was almost entirely absent.

6. Conclusion

Pounds & Philpott v IBRC & KPMG [2025] IEHC 720 is significant for three interlocking reasons.

First, it consolidates and extends the section 6 IBRC Act 2013 jurisprudence. The High Court confirms that all plaintiffs, regardless of size or sophistication, must obtain leave to sue IBRC in special liquidation; that the leave jurisdiction centres on what is “right and fair”; that a stateable case (however modest) is a pre-condition to leave; and that the court will refuse leave where continuing litigation would be futile, whether because it is unarguable or time-barred or—crucially—because it is fatally delayed.

Second, it demonstrates the practical force of the Supreme Court’s decision in Kirwan v Connors. The High Court applies the new delay thresholds to conclude that nearly nine years of inactivity, devoid of persuasive explanation and coupled with the near-completion of a special liquidation, make any continuation of the proceedings untenable. The case signals that courts will not hesitate to exercise the strengthened jurisdiction to bring moribund litigation to an end.

Third, the judgment is a reminder of the importance of litigation discipline and responsible advocacy. Plaintiffs who commence proceedings must prosecute them diligently; a plenary summons cannot be left dormant for a decade while other complaints are pursued elsewhere. Serious accusations—fraud, corruption, criminal behaviour—must be supported by evidence and properly pleaded, not raised in diffuse form at hearing.

In short, Pounds & Philpott stands as a clear statement that:

• section 6 leave is not automatic,
• the passage of time is itself a powerful reason to bring litigation to an end, and
• courts will protect both the integrity of the liquidation process and the administration of justice from the burden of long-dormant, unparticularised and reactive proceedings.