Warning Letters Do Not Reset Order 122 Time: Four-Year Inactivity Presumptively Dismisses Oral-Evidence Medical Claims

1) Introduction

In O'Shaughnessy v Health Service Executive [2026] IEHC 568, the High Court (Coffey J) dismissed a medical negligence/informed-consent action for want of prosecution under Order 122, rule 11 of the Rules of the Superior Courts (and, if necessary, the Court’s inherent jurisdiction).

The claim arose from spinal surgery performed in June 2014 at Merlin Park University Hospital. The plaintiff alleged lack of informed consent and negligence in pre-operative preparation. The defendant (the Health Service Executive) sought dismissal on the basis of inordinate and inexcusable delay.

The decision is notable for two practical points: (i) identifying what counts as a “proceeding” capable of stopping the Order 122 clock; and (ii) applying the Supreme Court’s structured approach in Kirwan v Connors [2025] IESC 21, particularly the presumption of dismissal after approximately four years of inactivity in oral-evidence-dependent cases.

2) Summary of the Judgment

  • The Court held that the last substantive procedural step was the plaintiff’s filing of affidavits of verification on 22 September 2021.
  • A solicitor’s 28-day warning letter threatening a default-judgment application (sent 23 October 2023) was not a “proceeding” within Order 122, rule 11 because it did not materially advance the case and was not followed by the threatened motion.
  • There was approximately four years and four months of inactivity prior to the defendant’s motion (5 February 2026), placing the case within the “four-year inactivity” category in Kirwan v Connors [2025] IESC 21.
  • The plaintiff’s explanations (practice dissolution, staffing issues, Covid-19, bereavement, maternity leave) were genuine but did not amount to a legally sufficient excuse for the prolonged inactivity.
  • The case was substantially dependent on oral testimony about discussions and consent in 2014; this heightened the risk identified in Kirwan (fading recollections/witness reluctance) and made dismissal the presumptive outcome absent “compelling reasons”.
  • The defendant did not acquiesce; it repeatedly sought particulars, confirmation of expert support, and progression/discontinuance.
  • The “balance of justice” favoured dismissal, additionally reinforced by the plaintiff’s continuing non-compliance with ss. 10 and 13 of the Civil Liability and Courts Act 2004 (failure to plead/particularise personal injuries and causation).

3) Analysis

A) Precedents Cited

Kirwan v Connors [2025] IESC 21 — the governing framework

Coffey J treated Kirwan v Connors [2025] IESC 21 as the decisive authority. The judgment adopts the Supreme Court’s milestone-based approach to Order 122, rule 11:

  • After roughly two years of total inactivity, dismissal may occur but usually requires some additional factor or prejudice; otherwise the court may impose strict case management.
  • After roughly four years of total inactivity, and especially where the case depends on oral evidence, the claim should generally be dismissed unless the plaintiff shows compelling reasons to proceed; specific proof of prejudice is not ordinarily required.

The High Court’s key move was to place this case squarely into Kirwan’s four-year category by rejecting the plaintiff’s attempt to treat a warning letter as a “proceeding”.

McBrearty v North Western Health Board [2007] IEHC 431, McAndrew v Egan [2017] IEHC 345, Power v Creed [2018] IEHC 688 — solicitor/practice difficulties rarely excuse prolonged delay

The Court relied on these High Court authorities for a well-established proposition: difficulties internal to a solicitor’s practice (staffing shortages, disorganisation, professional pressures, oversight) generally do not amount to a legally sufficient excuse for prolonged inactivity. Coffey J applied that approach to the explanations advanced (even accepting they were genuine), concluding they did not excuse a four-year-plus dormant period.

B) Legal Reasoning

(i) What counts as a “proceeding” under Order 122, rule 11

The plaintiff argued that a 28-day warning letter (a prerequisite before moving for judgment in default of defence) constituted a “proceeding” and therefore interrupted/restarted the Order 122 timeline. The Court rejected this.

Coffey J’s reasoning was both textual and functional:

  • Textual: Order 122, rule 11 expressly provides that “a motion…on which no order has been made shall not…be deemed a proceeding”. A letter that neither invokes the court’s jurisdiction nor results in an order cannot outrank an unsuccessful motion.
  • Functional/substance-over-form: adopting the approach referred to in Kirwan, the court asks whether the step materially advances the litigation. The warning letter advanced nothing: it obtained no evidence, advanced no pleadings, invoked no jurisdiction, and produced no order. It was merely a threat of action not taken.

This is an important clarifying point for practice: compliance-type correspondence that is not followed by a procedural step will not necessarily “stop the clock” for Order 122 purposes.

(ii) Applying the “four years inactivity” presumption in oral-evidence cases

Once the last substantive step was fixed at 22 September 2021, the case involved approximately four years and four months of inactivity. Under Kirwan, that triggers a strong presumption of dismissal where the claim depends on oral evidence.

Coffey J emphasised that informed-consent disputes are inherently oral-evidence heavy: the central questions concern what was said about risks, benefits, alternatives, what was understood, and what was agreed. With underlying events in 2014, the court accepted the systemic litigation risk identified in Kirwan: fading recollections and witness reluctance accompanying long delay.

(iii) Excuse and “compelling reasons”

The plaintiff’s reasons (Covid-era disruption and personal/practice difficulties) did not add up to a legally sufficient excuse for the entire dormant period, nor did they amount to “compelling reasons” capable of displacing the Kirwan presumption.

The judgment also treated the October 2023 warning letter as cutting against the plaintiff: it showed awareness that action was required, yet no motion followed for nearly two and a half years, reinforcing want of prosecution.

(iv) Defendant acquiescence and responsibility for progression

Consistent with Kirwan, the court reaffirmed that the plaintiff bears primary responsibility for progressing proceedings. The defendant is not to be criticised for failing to advance the plaintiff’s case absent acquiescence or encouragement of delay.

On the evidence, the defendant did the opposite: repeatedly sought particulars, raised statutory and evidential issues, and pressed for either discontinuance or forward movement. There was no acquiescence.

(v) Balance of justice and pleading failures under the Civil Liability and Courts Act 2004

The “balance of justice” analysis was strengthened by two contextual features:

  • Front-end delay: the proceedings were issued in November 2018 (over four years post-surgery) and served almost a year later.
  • Continuing pleading deficiency: despite repeated requests, the plaintiff had not furnished pleadings identifying the personal injuries and causation as required by ss. 10 and 13 of the Civil Liability and Courts Act 2004. As late as July 2026, the defendant still did not know what injuries were alleged to have been caused by the pleaded negligence.

These were not merely technical defects. The court treated them as materially relevant to both fairness and prejudice: without clear injury/cause particulars, the defendant’s ability to assess, investigate, and defend is impaired, particularly in a case already burdened by long delay and reliance on recollection.

C) Impact

  • Warning letters: The decision signals that a warning letter (even if required before a default application) will not necessarily qualify as a “proceeding” under Order 122, rule 11, especially if the threatened motion is not promptly issued.
  • Sharper Order 122 discipline post-Kirwan: The judgment operationalises Kirwan in the High Court and demonstrates that four years’ inactivity in oral-evidence-dependent claims will usually end the case unless truly compelling reasons exist.
  • Informed-consent litigation risk: Medical consent disputes are highlighted as paradigmatic oral-evidence cases, making them particularly vulnerable to dismissal where delay is significant.
  • Pleading compliance matters: Ongoing non-compliance with ss. 10 and 13 of the 2004 Act can weigh heavily in the balance of justice, not merely as a procedural misstep but as a concrete fairness issue.
  • Practice-management explanations: The court’s treatment of staffing/practice disruption underscores that professional or administrative difficulties will rarely justify prolonged inactivity, reflecting the line of authority including McBrearty, McAndrew, and Power.

4) Complex Concepts Simplified

  • “Want of prosecution”: a defendant’s application to end a case because the plaintiff has not pursued it with reasonable speed.
  • Order 122, rule 11 “proceeding”: not every action counts; the step must have sufficient formality/substance to advance the litigation. A mere threat of a motion, not followed through, may not count.
  • “Inordinate and inexcusable delay”: delay that is excessive (“inordinate”) and not justified by legally acceptable reasons (“inexcusable”).
  • “Balance of justice”: the court weighs the plaintiff’s interest in having the claim heard against the defendant’s right to a fair process, including the reliability of evidence over time and the ability to defend.
  • Oral-evidence dependence: cases turning on what people said and remembered (rather than documents) are more damaged by delay because memory fades and witnesses become harder to locate or less willing to engage.

5) Conclusion

O'Shaughnessy v Health Service Executive [2026] IEHC 568 reinforces a post-Kirwan reality: where there is approximately four years of complete inactivity and the claim depends significantly on oral evidence, dismissal for want of prosecution is the presumptive outcome unless the plaintiff can show compelling reasons to proceed.

The judgment also clarifies that a solicitor’s warning letter—especially one not promptly followed by the threatened motion—will not necessarily constitute a “proceeding” under Order 122, rule 11. Combined with the court’s emphasis on statutory pleading requirements for personal injuries and causation, the decision underscores that timely, substantive steps (pleadings, motions, evidence-gathering) are essential to keep long-running personal injuries litigation alive.