‘Inactivity’ Means No Procedural Steps and Cumulative Periods Count: The High Court’s Primor–Kirwan Roadmap in Doyle v Commissioner of An Garda Síochána [2025] IEHC 591

Introduction

This High Court judgment (Dignam J, 6 November 2025) addresses a motion by the Commissioner of An Garda Síochána, the Minister for Justice, Ireland, and the Attorney General to dismiss long-running proceedings brought by former Garda John Doyle. The defendants relied on two delay-based strike-out jurisdictions:

The O’Domhnaill v Merrick jurisdiction (interests of justice): dismissal where the lapse of time creates a real and serious risk of an unfair trial or serious unfairness to the defendant, regardless of whether the plaintiff is at fault.
The Primor (now re-shaped by the Supreme Court’s decision in Kirwan v Connors t/a MJ O’Connor Solicitors & Ors [2025] IESC 21) jurisdiction: dismissal where there has been inordinate and inexcusable plaintiff delay, with a recalibrated emphasis on the passage of time itself and structured milestones (two, four and five years) tied to Order 122 rule 11 RSC.

Mr Doyle challenges the lawfulness of his December 1998–January 1999 medical retirement under the Garda Síochána (Retirement) Regulations 1934. While the medical basis cited was chronic alcohol abuse and dependency, Mr Doyle contends that this was merely a device to remove him because of his involvement with and concerns about covert Garda drugs and firearms operations in the early to mid-1990s. The reliefs sought are declaratory (including nullity of the retirement), reinstatement, arrears/pension, and damages for breach of constitutional rights.

The litigation history is striking: proceedings began in January 2003; no Statement of Claim issued until July 2018; defendants’ particulars sought in December 2018; replies arrived in January 2021; the plaintiff issued a default judgment motion in December 2021; and the defendants then issued this strike-out motion in February 2022. In parallel, Mr Doyle had engaged external processes (GSOC 2007–2008, the Minister’s Independent Review Mechanism 2014–2016, and a failed bid to participate in the Disclosures Tribunal).

Procedurally, the strike-out application took an unusually complex path: after the hearing, the Court admitted a heavily-redacted affidavit from a third party asserting similar covert operations, and invited submissions on two intervening Supreme Court decisions shaping delay jurisprudence: IBRC v Fingleton [2024] IESC 59 (O’Domhnaill strand) and Kirwan v Connors [2025] IESC 21 (Primor strand).

Summary of the Judgment

The Court refused to strike out under the O’Domhnaill v Merrick jurisdiction, holding that—despite clear litigation disadvantages—delay had not rendered a fair trial impossible in the stringent constitutional sense. Crucially, the unavailability of the Chief Medical Officer (CMO), Dr Gerard McCarthy, was not attributable to delay because he died only seven months after the impugned medical certification.

However, applying the Supreme Court’s revamped Primor–Kirwan framework, the Court dismissed the proceedings for want of prosecution. It held that:

“Inactivity” is measured by the absence of formal procedural steps; a Notice of Intention to Proceed is not a “step.”
There was a cumulative seventeen years of inactivity: over fifteen years (2003–2018) before the Statement of Claim, plus a further twenty-five months between the Notice for Particulars (Dec 2018) and the Replies (Jan 2021). Only 14.5 months (Dec 2014–Feb 2016) were excused due to defendants’ acquiescence during the Minister’s Independent Review Mechanism.
While a two-year block of inactivity normally must immediately precede a dismissal application, the four- and five-year thresholds can be met by aggregating multiple periods of total inactivity over the life of the action (“cumulative inactivity”).
Specific prejudice was “at least moderate” due to the unavailability (caused by delay) of Detective Sergeant Michael Fitzpatrick (deceased) and Assistant Commissioner (formerly Detective Sergeant) Martin Quilter (incapacitated by stroke) as key witnesses on background operations that both parties treated as important to the case. By contrast, prejudice tied to the CMO’s death was not caused by delay.
No “compelling reasons” or “pressing exigency of justice” justified allowing the case to proceed despite the very extensive cumulative inactivity. External processes (GSOC/IRM/Disclosures Tribunal) could not deliver the reliefs sought and did not excuse the scale of inactivity; reputational prejudice arguments and defendant inactivity carried limited weight post-Kirwan absent acquiescence or positive encouragement.

Result: proceedings dismissed under Primor–Kirwan; not dismissed under O’Domhnaill.

Analysis

Precedents Cited and Their Influence

O’Domhnaill v Merrick [1984] IR 151: Recognises a jurisdiction to dismiss in the interests of justice where delay makes a fair trial impossible, irrespective of fault. As restated in IBRC v Fingleton [2024] IESC 59 (Woulfe J), the Court emphasised the strong presumption in favour of trial on the merits, the exceptional nature of this jurisdiction, and the distinction between an imperfect trial and an unfair trial (Nash v DPP [2015] IESC 32). Dignam J hewed to this high bar and declined to strike out under this strand.
IBRC v Fingleton [2024] IESC 59: Consolidates the O’Domhnaill principles, highlighting the trial judge’s primacy in assessing fairness and the strong constitutional preference for a merits trial. The High Court adopted this calibration when holding that litigation disadvantages did not cross the constitutional threshold of unfairness in this case.
Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459: The traditional test for culpable delay has been fundamentally altered by Kirwan v Connors. Rather than revisiting Primor’s three-limb test, Dignam J applied Kirwan’s updated structure.
Kirwan v Connors t/a MJ O’Connor Solicitors & Ors [2025] IESC 21 (O’Donnell CJ; Hogan J; O’Malley J; Charleton J; Murray J concurring in part; Collins J dissenting in part): This is the pivotal authority. The majority:
- Centers the passage of time as an independent and weighty factor justifying dismissal “without more.”
- Elevates Order 122 rule 11’s two-year inactivity milestone as the principal normative yardstick for “inordinate” delay.
- Articulates graduated consequences: (i) under two years, O’Domhnaill-level prejudice is needed; (ii) after two years, dismissal may be warranted; (iii) after four years, dismissal should follow for oral-evidence cases unless compelling reasons exist; (iv) after a cumulative five years’ complete inactivity, courts have a generous power to dismiss absent a pressing exigency of justice.
- Clarifies defendants’ lack of obligation to proactively move cases along, save where their conduct amounts to acquiescence or positive encouragement.
Dignam J operationalises these milestones and their interaction with procedural “steps.”
Manning v Benson & Hedges Ltd [2004] 3 IR 556: A defence need not precede a strike-out motion; non-delivery is not automatically fatal where plaintiff delay makes defence preparation impracticable. Dignam J endorsed this principle.
Nash v DPP [2015] IESC 32: The Court cited Nash on what renders a trial constitutionally unfair, reinforcing that mere imperfection or litigation disadvantage does not equate to unfairness.
Comcast International Holdings v Minister for Public Enterprise [2012] IESC 50: McKechnie J’s excusatory factors in a tribunal-heavy context (Moriarty Tribunal) were distinguished; Dignam J accepted Comcast’s relevance in principle but found it inapplicable to Mr Doyle’s very different external processes (GSOC, IRM).
Gibbons v N6 (Construction) Ltd [2022] IECA 112: Clarifies that prejudice thresholds under Primor/Kirwan are lower than under O’Domhnaill. Dignam J followed this in acknowledging “moderate” prejudice sufficed to reinforce dismissal.
Campbell v Geraghty [2022] IEHC 241; Allen v Redland Tile Co (NI) Ltd [1973] NI 75: Cited for defendants’ limited obligation to progress cases and for what amounts to a “proceeding” (a formal step).
Quinn v Faulkner [2011] IEHC 103; Guerin v Guerin [1992] 2 IR 287; McKenna v Farrell [2007] IEHC 343: Illustrative of contexts where exceptional exigencies may justify proceeding notwithstanding delay.

Legal Reasoning

1) O’Domhnaill v Merrick (interests of justice)

The Court undertook a careful, witness-by-witness prejudice analysis. It accepted that oral testimony would be central; numerous potential witnesses were either deceased, ill, memory-impaired, missing, or hampered by missing documents. Yet two features proved decisive:

Causation by delay: The most significant missing witness for the termination issue was the CMO, Dr Gerard McCarthy, who died within months of the retirement decision. That absence was not caused by the plaintiff’s litigation delay; thus it could not justify striking out under O’Domhnaill.
Unfairness versus imperfection: Even aggregating the other witness/document deficits, the Court found litigation disadvantage—but not the constitutional impossibility of a fair trial required under O’Domhnaill. Particularly, the core justiciable issue is the lawfulness of the termination, not a wholesale trial of the propriety of covert operations. Some witnesses (e.g., Det. Supt. O’Dwyer) remain available for key events; some documentary gaps pre-date the litigation; and the trial judge retains primacy to reassess fairness as the evidence unfolds.

2) Primor–Kirwan (culpable delay)

The Court’s core holdings map and refine Kirwan’s framework for practitioners:

“Inactivity” means no procedural steps: Because Order 122 rule 11 is now central to the test, inactivity tracks the absence of formal steps. Notices of Intention to Proceed do not count.
Immediate two-year period: general rule, not absolute: Typically, a two-year block of inactivity must immediately precede a dismissal motion; however, exceptional cases may justify treating shorter immediate periods as inordinate (e.g., strategic manipulation or special categories such as childcare/planning).
Four-/five-year thresholds can be cumulative: For the higher thresholds, separate periods of total inactivity may be aggregated across the life of the action; no need for a single continuous block immediately before the motion.
Two-limbed prejudice lens: The Court distinguishes (i) prejudice that makes even defence preparation impracticable (e.g., instructions impossible to obtain because of delay) from (ii) trial prejudice (witness availability/memory). The first can alone ground dismissal; the second strengthens dismissal, especially at the four-/five-year stages where prejudice is not strictly necessary.
Defendants need not proactively progress cases: Absent acquiescence or positive encouragement, defendants are not required to “spend time, energy and resources” moving claims that plaintiffs have left dormant.

Applying those principles to the chronology, the Court found:

Seventeen years’ cumulative inactivity (15+ years before the Statement of Claim; 25 months for replies to particulars) placed the case squarely within the four-/five-year Kirwan milestones (para 26(iii)–(iv) of O’Donnell CJ), triggering a strong default in favour of dismissal.
Explanations for delay largely failed: Engagement with GSOC (approx. 18 months) and IRM (approx. 20 months) did not excuse the prolonged litigation inactivity; they could not deliver the reliefs sought and were not analogous to the tribunal-based rationale in Comcast. The only excused period was the 14.5 months (Dec 2014–Feb 2016) after the plaintiff’s solicitors told the State they would defer pleading while the IRM progressed and the State did not object—amounting to acquiescence for that slice only.
Prejudice: While not strictly required at the five-year level, the Court found “at least moderate” specific prejudice due to the unavailability of Det. Sgt. Fitzpatrick (deceased) and Asst. Comm. Quilter (stroke-related incapacity), both central to the background operations that the parties themselves treated as important. Conversely, prejudice linked to the CMO’s death was not caused by delay and could not support dismissal.
No “compelling reasons” or “pressing exigency of justice” to proceed: The case does not fit the exceptional categories envisaged by Kirwan (e.g., acute disadvantage, highly unusual public law matters demanding adjudication, or serious defence misconduct). Allegations of Garda wrongdoing, while serious, are not the cause of action pleaded; the case concerns the legality of the plaintiff’s own retirement. Oversight of Garda wrongdoing exists through statutory mechanisms; the Court should not convert a stale civil claim into a de facto public inquiry.
Defendant conduct did not shift the balance: Raising an extensive Notice for Particulars was legitimate given the Statement of Claim’s blend of detail and vagueness and did not amount to acquiescence or positive encouragement. The failure to move earlier does not deprive the State of its strike-out entitlement under Kirwan.

Impact

This judgment meaningfully operationalises Kirwan v Connors in the High Court and offers concrete guidance for future delay motions:

Counting inactivity: Practitioners must treat “inactivity” as the absence of formal procedural steps in the action. Activity outside court (letters, settlement talks, parallel complaints) can explain delay but does not stop the clock.
Two-year milestone (immediate): Generally needed immediately before a strike-out motion, but the door remains open to exceptional departures where fairness and litigation integrity require it.
Four-/five-year thresholds (cumulative): Multiple blocks of total inactivity can be aggregated; no need for a continuous block immediately before the motion. This is a significant practical clarification.
Notices of Intention to Proceed: Do not reset time; they are not “steps” under O.122 r.11. Plaintiffs must file actual procedural steps (pleadings, applications) to avoid triggering Kirwan’s milestones.
External processes rarely excuse litigation inertia: Unless a tribunal or statutory process is indispensable to the pleaded claim (as in Comcast), external engagements will not justify long periods of total inactivity, especially when they cannot deliver the civil reliefs sought.
Defendants’ role post-Kirwan: Absent acquiescence or lulling conduct, defendants are not criticised for “doing no more than is required to respond.” Reputational prejudice gets “little weight” if defendants could have moved earlier, but that consideration is context-sensitive, especially where the plaintiff only crystallises allegations years after issuing a bare summons.
Pleading quality matters: Where a Statement of Claim mixes granular narrative with vagueness about what, exactly, is impugned and by whom, defendants can legitimately seek particulars without being seen to acquiesce. This also affects fairness/prejudice assessments at strike-out.
Prejudice assessment template: The judgment’s two-limbed approach (defence-preparation prejudice vs trial prejudice) offers a useful analytical framework for future motions, dovetailing with Kirwan’s graduated thresholds.

Complex Concepts Simplified

O’Domhnaill v Merrick jurisdiction: Even if no one is to blame, the court can strike out where lapse of time creates a real and serious risk of an unfair trial. High threshold. Imperfect trials are acceptable; constitutionally unfair trials are not.
Primor–Kirwan jurisdiction: Focuses on culpable plaintiff delay. The Supreme Court in Kirwan refocused the inquiry on time itself, using objective milestones tied to Order 122 r.11: two years (critical inflection point), four years (dismissal should follow for oral evidence cases unless compelling reasons exist), and cumulative five years (a generous power to dismiss absent a pressing exigency of justice).
“Inactivity” versus “activity” outside court: Only formal procedural steps count as activity for stopping the Kirwan clock (e.g., filing a pleading, issuing a motion). External complaints or correspondence are relevant to explaining delay but do not reset time.
“Proceeding”/“step”: A formal action required or permitted by the Rules (e.g., filing a Statement of Claim). A Notice of Intention to Proceed is not a step.
“Acquiescence” or “positive encouragement”: Defendant behaviour that effectively invites or endorses delay can blunt a strike-out. Mere inactivity by a defendant is not acquiescence.
“Litigation disadvantage” vs “unfair trial”: A disadvantage (e.g., faded memories) does not automatically equal a constitutionally unfair trial. O’Domhnaill requires a very high level of unfairness; Kirwan allows dismissal at lower prejudice levels where culpable delay is established.
“Compelling reasons” and “pressing exigency of justice”: Safety valves in Kirwan’s framework. Examples include plaintiffs with significant disadvantage, unusually important public law questions demanding resolution, or serious defendant misconduct. They are exceptional.

Additional Noteworthy Points from the Judgment

The Court admitted a redacted affidavit from a third party about similar operations, then allowed the State to file supplemental evidence on changed circumstances (notably, Assistant Commissioner Quilter’s stroke). This underscores the Court’s commitment to a balanced, up-to-date prejudice analysis.
The Court emphasised the practical significance of unclear pleadings: it complicates prejudice analysis (e.g., identifying which witnesses truly matter to the pleaded issues). Here, while the background operations were not the cause of action, both sides treated them as important, influencing the Court’s prejudice calculus.
Documentary gaps that pre-date litigation (e.g., pre-2000 call logs destroyed; a 2008 arson at Blarney Station) are not “delay-caused” and thus carry less strike-out weight.

Conclusion

Dignam J’s judgment does not create new doctrine; rather, it provides a clear and practical roadmap for applying the Supreme Court’s Kirwan recalibration of the Primor strike-out jurisdiction. The Court:

Confirms that “inactivity” for Kirwan purposes is the absence of formal procedural steps; Notices of Intention to Proceed are not steps.
Clarifies that four-/five-year thresholds can be satisfied by cumulative total inactivity; a solid block immediately before the motion is not required. The two-year immediate period is generally required but not absolute.
Emphasises that external processes rarely excuse prolonged litigation dormancy, particularly where they cannot confer the reliefs sought in the civil action.
Provides a useful two-limbed lens for assessing prejudice, distinguishing defence-preparation impossibility from trial disadvantage.
Reiterates that defendants are not obliged to advance dormant litigation absent acquiescence or encouragement.

In outcome, the claim survived O’Domhnaill’s stringent “unfair trial” threshold but succumbed to the revamped Primor–Kirwan test because of seventeen years of cumulative inactivity, only marginally excused, plus at least moderate delay-caused prejudice on witnesses the parties treated as important. The decision sends a strong systemic message: plaintiffs must prosecute their claims by taking formal steps with expedition, especially once two years have passed. Delay is now a central, objective factor—not merely a context—in determining whether proceedings should be allowed to continue.