“No Clean Slate for Token Steps”: Homes of Heritage Ltd v Cunningham & Ors and the Post‑Kirwan Law on Dismissal for Want of Prosecution

1. Introduction

The High Court decision in Homes of Heritage Ltd v Cunningham & Ors ([2025] IEHC 724, Kennedy J, 19 December 2025) is an important early application – and clarification – of the Supreme Court’s landmark ruling in Kirwan v Connors & Ors [2025] IESC 21. It addresses when long‑delayed proceedings may be dismissed for want of prosecution and, crucially, what Kirwan really did – and did not – change.

The central legal question was whether, after Kirwan, a defendant can only succeed on a dismissal motion (where relying either on Order 122, rule 11 of the Rules of the Superior Courts (“Order 122”) or on the inherent jurisdiction) if there has been an unbroken two‑year period of complete procedural inactivity immediately before the motion is issued. The plaintiff argued that any steps taken after a long period of dormancy “cleaned the slate” and barred dismissal unless a fresh two‑year block of inactivity accrued. The defendants contended that this misread Kirwan and that the court remained free to look at the totality of delay and to dismiss even where some recent procedural activity had occurred.

Kennedy J sided with the defendants. The judgment confirms that two years of inactivity is a benchmark and inflection point, not an absolute jurisdictional prerequisite; that the inherent jurisdiction to dismiss for want of prosecution survives and operates alongside Order 122; and that token or last‑minute steps do not immunise a plaintiff from dismissal after a history of inordinate and inexcusable delay.

Beyond its doctrinal significance, the case is a practical warning: plaintiffs who allow proceedings to lie fallow for years, particularly where equitable relief is sought, run a grave risk that the action will be struck out – even if liability appears strong and even if the defendant can show only moderate specific prejudice.

2. Factual and Procedural Background

2.1 Parties and transactions

Plaintiff: Homes of Heritage Limited, a property developer.
Defendants:
- First defendant – Ian Cunningham (adviser to the other defendants).
- Second, third, and fourth defendants – the Cunningham sisters (the “applicants” on the motion).

Two key and simultaneous 2006 transactions underlie the dispute:

Contract for sale (13 April 2006): All four defendants agreed to buy land from the plaintiff for €5.75 million, with completion due on 3 December 2007. The plaintiff’s present proceedings seek specific performance of this contract.
Loan/Indenture: By a separate indenture, the defendants lent €500,000 to the plaintiff, repayable (with interest) on 13 April 2013. The applicants funded this loan. By April 2013, approximately €820,000 was due. On 4 April 2025, just before the 12‑year limitation period for instruments under seal expired, the applicants issued summary proceedings to recover this debt.

The two sets of proceedings created an uneasy backdrop: the plaintiff sought to enforce the purchase contract; the applicants sought to enforce the plaintiff’s debt to them. A key fairness concern was whether it would be just to dismiss the plaintiff’s claim while leaving the loan claim standing. As in Dennis Guilfoyle Developments Ltd v Wardrop [2025] IEHC 414 (Guilfoyle), this concern was addressed by the applicants undertaking to discontinue the loan proceedings and release the charge if the specific performance action was dismissed.

2.2 The pleadings and issues

The pleadings were strikingly straightforward:

The statement of claim (12 short paragraphs) pleaded:
- the 2006 contract and its terms;
- service of completion notices and extensions;
- non‑completion by the defendants;
- the making of a compulsory purchase order (“CPO”) by Westmeath County Council; and
- a claim for specific performance.
The applicants’ defence:
- admitted the contract’s existence, terms and non‑completion;
- asserted they were “strangers” to the plaintiff’s dealings with the first defendant;
- pleaded that the plaintiff was itself unready or unable to complete;
- argued that the CPO and the plaintiff’s dealings with the Council materially altered the subject property and rendered the contract unenforceable;
- pleaded laches (delay), including pre‑commencement delay.

Kennedy J emphasised that nothing on the face of the pleadings suggested the need for extensive discovery or elaborate pre‑trial procedures. This simplicity was a recurring theme when assessing whether the long delay could be justified by “background work” or complex factual investigations.

2.3 The timeline of delay

The chronology (summarised from the annex) is critical to the court’s reasoning:

13 April 2006 – Contract executed; completion due 3 December 2007.
3 January & 6 February 2008 – Completion notices served and then extended to 24 June 2008.
24 June 2008 – August 2011 – No proceedings. Pre‑commencement delay of about 26 months from final extended completion date to issue of plenary summons.
16 August 2011 – Plenary summons issued.
2011–2014 – Pleadings exchanged; applicants’ discovery completed on 20 March 2014; discovery sought and obtained from first defendant, culminating in further and better discovery on 13 April 2016.
13 April 2016 – early 2017 – Further attempts to obtain discovery and information from first defendant; then effective dormancy from the applicants’ perspective from 20 March 2014.
17 July 2017 – Plaintiff receives documents from Council following an FOI request about the CPO.
2017–2019 – No inter partes steps; plaintiff serves a notice of intention to proceed in December 2019, but takes no meaningful action thereafter.
19 May 2020 – Plaintiff obtains “updated advices” from senior counsel (content not disclosed).
2020–January 2024 – No inter partes steps taken. Plaintiff relies vaguely on Covid‑19 and unspecified background work; the court is unpersuaded.
3 January 2024 – Plaintiff purportedly serves notice of trial without first serving a notice of intention to proceed, in breach of Order 122. These steps are treated as a nullity.
10 June 2024 – Valid notice of intention to proceed served; first proper step since 2017.
July–November 2024 – Plaintiff sends reminder letters re Practice Direction HC 127; issues a motion on 8 November 2024 to compel compliance and fix a hearing date.
28 November 2024 – Applicants issue the present motion to dismiss for want of prosecution.

In substance, therefore, there was:

significant pre‑commencement delay (about 26 months); and
a core period of inordinate and inexcusable delay between April 2016 and June 2024, even allowing for discovery from the first defendant and the FOI process.

3. Summary of the Judgment

Kennedy J dismissed the plaintiff’s action against the three applicant defendants (the sisters) for want of prosecution, exercising both:

the jurisdiction under Order 122, rule 11; and
the inherent jurisdiction to dismiss for inordinate and inexcusable delay.

The court held:

There was inordinate and inexcusable delay:
- pre‑commencement delay (24 June 2008–August 2011); and
- a prolonged period of effective dormancy from April 2016 to June 2024, unexplained by FOI requests, internal “background work”, counsel’s advices or Covid‑19.
In line with Kirwan, specific prejudice need not be shown in cases of very long delay involving oral evidence, but in any event the applicants had shown some prejudice.
The plaintiff’s central legal argument – that Kirwan requires an uninterrupted two‑year period of complete inactivity immediately preceding the motion as a pre‑condition to dismissal – was rejected. The two‑year period is a benchmark, milestone or starting point, not a rigid threshold.
The Supreme Court’s decision in Collins v Dublin Bus (Unreported, 22 October 1999) remains good law. A dismissal motion can succeed even where some recent steps have been taken, especially where those steps are tokenistic or follow many years of unexplained delay.
The defendants were not at fault for failing to push the case forward during its long dormancy; the burden of prosecuting the claim lies squarely on the plaintiff. The time they took to bring the dismissal motion after the June 2024 notice of intention to proceed was reasonable in the circumstances.
Considering the totality of the delay, the absence of a convincing explanation, the inherent prejudice of litigating such a stale claim and the modest but real additional prejudice to the applicants, the balance of justice required dismissal.

The court therefore dismissed the proceedings against the second, third and fourth defendants, and indicated that they were presumptively entitled to their costs of the application and the action, subject to further written submissions on costs.

4. Legal Framework and Precedents

4.1 The pre‑Kirwan position: Primor and the “laundry list” test

Before Kirwan, the leading authority was Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459. Hamilton CJ there set out a three‑stage inquiry:

Was there inordinate delay by the plaintiff?
If so, was the delay inexcusable?
If both, did the balance of justice nonetheless favour allowing the claim to proceed?

The third limb became highly fact‑sensitive and often unwieldy. As summarised by Butler J in Campbell v Geraghty [2022] IEHC 241 (quoted by Kennedy J), courts would weigh a “laundry list” of factors, including:

any delay or acquiescence by the defendant;
whether a fair trial was still possible;
serious prejudice to the defendant (not confined to forensic prejudice).

Over time, judges and commentators criticised this approach as over‑complex, unpredictable and too forgiving of plaintiffs’ delay.

4.2 Order 122, rule 11 RSC

Order 122, r. 11 provides, in summary:

If there has been no “proceeding” for one year from the last proceeding, a plaintiff who wishes to proceed must give one month’s notice of intention to proceed.
If there has been no proceeding for two years from the last proceeding, the defendant may apply to dismiss for want of prosecution; the court may dismiss or make such other order as seems just.

Key points (as analysed in Kirwan, especially by Murray J) include:

The rule focuses on procedural steps on the court record (not private negotiations or internal work).
A defendant who takes a procedural step loses the ability to rely on that two‑year period.
A notice of intention to proceed is not itself a “proceeding”, but it gives the defendant a clear opportunity to:
- either bring a dismissal motion before further steps are taken; or
- allow the plaintiff to proceed, thereby forfeiting the right to rely on that period of inactivity (unless there is later further delay).

4.3 Collins v Dublin Bus and the inherent jurisdiction

In Collins v Dublin Bus (Unreported, 22 October 1999), the Supreme Court drew a clear distinction between:

dismissal under Order 122; and
dismissal under the court’s inherent jurisdiction for inordinate and inexcusable delay.

There had been some minimal steps in the two years prior to the motion, so Order 122 strictly speaking did not apply. However, the court nonetheless upheld the High Court’s dismissal, recasting it as an exercise of the inherent jurisdiction to dismiss for inordinate and inexcusable delay which was prejudicial to the defendants.

This established that Order 122 does not “occupy the field”. Even where its literal requirements are not met, the court may still dismiss under its inherent power to control its own process, in the interest of justice and efficient administration.

4.4 Kirwan v Connors & Ors [2025] IESC 21: the revised test

Kirwan is the pivotal authority now governing want of prosecution applications. The Supreme Court (by majority) endorsed dismissal of the plaintiff’s claims after many years of inactivity, and in doing so:

retained but revised the Primor test;
gave much greater weight to the mere passage of time and its systemic and inherent prejudicial effects;
sought to simplify the law and reduce the subjectivity and unpredictability of the “laundry list” balancing exercise.

Key elements (as synthesised by Kennedy J) include:

4.4.1 Time as a decisive factor

O’Donnell CJ stressed that:

“the passage of time is important in and of itself, and can justify dismissal of a claim, without more.”

There is an “increased appreciation” that delay, in itself, is inimical to the just resolution of disputes. Justice requires claims not merely to be heard, but to be determined within a reasonable time.

4.4.2 Two years as the “critical milestone”

The majority drew heavily on the structure of Order 122 to set an objective framework:

Before two years’ total inactivity: dismissal should occur only where:
- there is an abuse of process; or
- prejudice reaches the level required under O’Domhnaill v Merrick [1984] IR 51 (i.e. a fair trial is impossible).
After two years’ total inactivity: dismissal may occur without proof of specific prejudice, though in practice courts are more likely to dismiss where there is significant additional prejudice or other aggravating factors.
After four years’ total inactivity: where the case depends significantly on oral evidence, it should normally be dismissed, unless the plaintiff can show compelling reasons why it should proceed.
After five years’ cumulative complete inactivity: courts have a “generous power” to dismiss; proceedings should generally be dismissed unless there is a “pressing exigency of justice” requiring a trial.

Murray J articulated this in paragraphs 53–54 of his judgment (expressly adopted by O’Donnell CJ and Hogan J), treating Order 122’s two‑year period as a benchmark, not a straitjacket. Hogan J spoke of an “inflexion point” at two years of inactivity.

4.4.3 The continuing role of the inherent jurisdiction

One key point in Kirwan was whether Order 122 had supplanted the inherent jurisdiction. Murray J thought it largely had, but the majority disagreed. O’Donnell CJ observed that Order 122:

“cannot be seen as occupying the field and expelling the inherent jurisdiction.”

Hogan J likewise emphasised that courts retain a general inherent jurisdiction to prevent abuse and to protect the administration of justice, including striking out proceedings in cases of manipulative use of procedural steps or “flurries of activity” after long delay (expressly referencing Collins).

4.4.4 Not a mechanical or mathematical rule

Although time thresholds were emphasised, the Supreme Court cautioned repeatedly against an overly mechanical approach:

O’Donnell CJ: the test “is not mechanical”; courts must retain a “degree of flexibility” and remain “astute to ensure that justice in its broadest sense should be done”.
Murray J: the ultimate question depends on the relationship between:
- total periods of inactivity;
- the reasons (if any) for not proceeding; and
- the effect on the defendant and the proceedings.
Courts should take a “conspectus” view of substantial chunks of inactivity, and generally ignore shorter gaps of less than six months.

4.4.5 Limited role of the perceived strength of the claim

The majority (especially Hogan and Murray JJ) stressed that, save in rare cases, courts should not evaluate the merits of the underlying claim on a want of prosecution application. The central focus is delay and its consequences, not whether the plaintiff’s claim might have succeeded.

4.5 Other authorities cited

Kennedy J also referred to a range of other decisions, including:

O’Domhnaill v Merrick [1984] IR 51 – the distinct jurisdiction to dismiss where, regardless of fault, a fair trial is no longer possible. This jurisdiction was not invoked here.
Granahan t/a C G Roofing v Mercury Engineering [2015] IECA 58, Start Mortgages DAC v McNamara [2020] IEHC 187, Cabot Financial (Ireland) Ltd v Heffernan [2021] IEHC 823, Walsh v Mater Misericordiae University Hospital [2022] IEHC 126, McCann v Smurfit [2022] IEHC 300 – illustrating the courts’ increasingly strict approach to delay, driven by constitutional and ECHR obligations.
Campbell v Geraghty [2022] IEHC 241 – post‑Primor but pre‑Kirwan synthesis of the overlapping jurisdictions, quoted approvingly in Kirwan and by Kennedy J.
Anglo Irish Beef Processors v Montgomery [2002] 3 IR 510 – Supreme Court upholding dismissal for long delay where the motion was prompted by a plaintiff’s step (an application to amend pleadings) after some seven years’ dormancy.
Dennis Guilfoyle Developments Ltd v Wardrop [2025] IEHC 414 – a post‑Kirwan High Court case (Barr J) in which:
- plaintiff relied unsuccessfully on FOI‑related explanation for delay;
- defendant gave an undertaking to discontinue associated proceedings if the main action was dismissed for delay – a model followed by the applicants in this case.

5. The Court’s Legal Reasoning in Homes of Heritage

5.1 Treatment of evidence and affidavits

Kennedy J began with a pointed critique of the plaintiff’s evidential approach:

The principal affidavit was sworn by the plaintiff’s solicitor, not by any of its directors or officers.
No director swore an affidavit explaining:
- why proceedings were not issued earlier;
- why they were allowed to lie dormant for so long; or
- what strategy, if any, justified the prolonged inaction.

The judge emphasised a “basic evidential principle”: affidavits should ordinarily be sworn by the person best placed to address the facts in question. While solicitors are appropriate deponents for procedural matters (e.g. correspondence, motions), substantive matters such as the client’s intentions, decisions and strategy should be addressed by the client.

He noted that:

the defendants’ solicitor had initially grounded the dismissal motion, but a third defendant later swore an affidavit verifying the solicitor’s account;
no such verifying affidavit was provided by the plaintiff’s directors.

The plaintiff’s affidavit also suffered from vagueness and a lack of exhibits:

it referred in general terms to without prejudice negotiations, internal work, FOI applications, and counsel’s advices;
but gave little detail on dates, content, outcomes or necessity, and did not exhibit key correspondence (even in redacted or appropriately limited form).

This omission ultimately undermined the credibility of the plaintiff’s explanations for delay. The court was not prepared to accept bare assertions of “background work” or “continuing negotiations” as a sufficient answer to an eight‑year period of practical dormancy.

5.2 Dissecting the delay and the excuses

5.2.1 Pre‑commencement delay (June 2008 – August 2011)

The court drew a clear line:

No criticism for delay up to 24 June 2008 (the date to which the disputed completion notices were extended by agreement).
26 months’ delay thereafter before issuing proceedings was, however, excessive and largely unexplained.

The plaintiff relied on ongoing settlement discussions and without prejudice correspondence. Kennedy J accepted that parties need not rush to litigation, but:

occasional exchanges over a prolonged period do not justify material delay;
there was no evidence of “serious, reciprocal, sustained engagement” or a realistic prospect of resolution in the short term;
even if one were charitable and allowed for the negotiations, there was still an unjustifiable gap between the end of correspondence in March 2010 and the issue of proceedings in August 2011.

This pre‑commencement delay, while not fatal of itself, increased the plaintiff’s obligation to prosecute the case expeditiously once commenced – an obligation stressed in Kirwan.

5.2.2 The litigation phase up to April 2016

Once proceedings were issued in August 2011, there was at least some progress:

pleadings were exchanged;
the applicants delivered discovery by March 2014;
the plaintiff pursued discovery from the first defendant, including motions and threats of contempt, concluding in further and better discovery in April 2016.

Kennedy J accepted that:

it was reasonable and indeed necessary to prosecute the claim against the first defendant as well as the applicants;
it would have been unrealistic to set the case down for trial only against the applicants while discovery from the first defendant remained outstanding;
some delay was attributable to the first defendant’s non‑cooperation.

Accordingly, the court did not place heavy blame on the plaintiff for delay up to 13 April 2016, albeit remarking that the pace was “underwhelming” and communication with the applicants could have been better.

5.2.3 The critical dormancy: April 2016 – June 2024

The real crux was the period after April 2016. Kennedy J identified several purported explanations and found them wanting.

(a) FOI requests re the CPO

The plaintiff argued that it pursued a Freedom of Information request to the Council about the CPO, thereby justifying its failure to take steps in the proceedings. The judge held:

the affidavit evidence was vague, lacking exhibits or specifics as to dates, scope, and the necessity of the FOI request;
the CPO issue was essentially a legal question about the effect of the CPO on the contract; it was not clear what documentary information was genuinely needed before proceeding;
in any event, the Council supplied FOI documents on 17 July 2017; nothing in the FOI process could explain the further seven years’ delay until June 2024.

(b) “Background activity” and counsel’s advices

The plaintiff claimed that “work was continuing in the background” and that counsel had been briefed with updated documentation “with a view to setting the matter down for trial”, with “updated advices” being obtained in May 2020.

Kennedy J was not impressed:

no clear chronology was provided of what was done, when, and to what effect;
the content of counsel’s advices was not explained – particularly whether and when counsel advised that the case was trial‑ready;
the court noted that what really matters on a want of prosecution application is inter partes procedural activity; undisclosed background work carries much less weight.

He contrasted the vague assertions in this case with the more detailed (though ultimately insufficient) chronology in Guilfoyle, and emphasised the straightforward nature of the dispute. The suggestion that prolonged internal work was required to prepare a relatively simple specific performance case was not credible.

(c) Covid‑19

The plaintiff invoked the Covid‑19 pandemic as a major factor explaining the lack of progress between 2020 and 2024. Kennedy J decisively rejected this justification:

the delays pre‑dated Covid and continued long after the main period of disruption;
the courts and profession adapted, including via remote hearings;
law firms remained operational; there was no reason the plaintiff could not:
- correspond with the defendants;
- set the case down for trial; or
- seek a hearing date to follow the easing of restrictions.
no particular step in this litigation was shown to have been blocked or disrupted by Covid measures.

Covid, in short, was not a valid excuse for this case’s prolonged stagnation.

(d) Breach of Order 122: notice of trial without notice of intention to proceed

After many years of silence, the plaintiff purported to serve a notice of trial on 3 January 2024, without first serving a notice of intention to proceed as required by Order 122 for any case with at least one year of inactivity.

Kennedy J held that:

this requirement is substantive and important, designed to protect defendants from being ambushed by long‑dormant claims;
the plaintiff was fully aware of it, having previously served a notice of intention in 2019;
steps taken in breach of the RSC cannot be relied upon by the plaintiff as “activity” to defeat a want of prosecution application;
professional courtesy alone should have prompted the solicitor to warn the defendants’ (by then retired) solicitor and give time for new legal representation to be arranged.

The plaintiff ultimately accepted that the January 2024 steps could not be invoked to demonstrate prosecution of the claim.

(e) Overall conclusion on delay

Kennedy J concluded that:

there was inordinate and inexcusable delay from April 2016 to June 2024;
the FOI process, the 2019 notice of intention, counsel’s 2020 advices, Covid and unspecified background work did not come close to justifying the eight‑year period of effective dormancy;
this was particularly so given the prior pre‑commencement delay and the fact that:
- the case was straightforward; and
- the plaintiffs were seeking equitable relief (specific performance), where delay is especially salient.

5.3 Interpreting Kirwan: Is two‑year inactivity a prerequisite?

The core legal issue of general importance was the plaintiff’s submission that, post‑Kirwan, no want of prosecution motion (under either Order 122 or the inherent jurisdiction) can succeed unless there has been a continuous two‑year period of complete procedural inactivity immediately before the motion is brought.

In other words, the plaintiff argued that once some procedural step is taken, the slate is wiped clean, and a defendant cannot seek dismissal unless a fresh two‑year block of inactivity accrues. This would enable a plaintiff to avoid dismissal indefinitely by taking a token step within each two‑year period.

Kennedy J undertook a careful reading of the Kirwan judgments and rejected this thesis for several reasons.

5.3.1 The nature of Kirwan’s adjustment to Primor

He accepted that Kirwan significantly revised the operation of Primor and gave much greater bite to delay. However:

the Supreme Court did not purport to overrule all prior authorities, nor to treat them as “suspect” in a broad sense;
the decision targeted particular aspects of Primor (especially the treatment of prejudice), rather than nullifying the entire body of case law.

Thus, pre‑Kirwan authorities – including Collins, Primor and AIBP v Montgomery – remain binding insofar as they are not inconsistent with Kirwan.

5.3.2 Express preservation of the inherent jurisdiction

The plaintiff’s argument was inconsistent with the Supreme Court’s explicit statements that:

Order 122 does not “occupy the field” or exclude the inherent jurisdiction (O’Donnell CJ);
Order 122 is not a “comprehensive code”; reading it as supplanting the courts’ power to dismiss in any other circumstances would raise questions about its validity (Collins J);
even where two years’ inactivity has not accrued, dismissal may still be appropriate where:
- the plaintiff has manipulated the two‑year rule by strategic token steps; or
- there has been a “flurry of activity” only after long delay – as in Collins v Dublin Bus itself (Hogan J at para. 176).

These passages point directly against a rigid requirement of two years’ inactivity immediately before the application, particularly in the context of the inherent jurisdiction.

5.3.3 The continued authority of Collins v Dublin Bus

Kennedy J placed particular weight on the Supreme Court’s treatment of Collins in Kirwan:

Although Murray J suggested that if Primor fell, Collins might “fall by the same sword”, other members of the court did not adopt this view.
Hogan J positively invoked Collins as an example of the inherent jurisdiction being properly exercised despite recent steps having been taken.
Collins J rejected attempts to distinguish “his” case and reaffirmed its core holding:
“Collins has a two‑fold significance. It is, firstly, authority for the continued availability of an inherent power to dismiss notwithstanding the provisions of Order 122, Rule 11 and, secondly, it indicates that, differences in the jurisdictional threshold aside, the inherent power and the power under the Rules fall to be exercised on a similar basis...”

Kennedy J concluded that Collins remains good law and that its logic decisively undermines the plaintiff’s “clean‑slate” theory.

5.3.4 The language of Kirwan: benchmark, not precondition

The plaintiff relied on repeated references in Kirwan to:

“total inactivity”, “complete inactivity” and a “solid block of two years’ complete procedural inactivity”; and
the adoption of the two‑year period from Order 122 as a “starting point” or “inflexion point”.

Kennedy J acknowledged that, at first glance, this language might appear to support the plaintiff’s position. But he noted that:

O’Donnell CJ and Hogan J consistently described the two‑year period using soft formulations such as “benchmark”, “milestone” and “inflexion point” rather than as a precondition or “jurisdictional threshold”;
Murray J himself inserted an explicit proviso that the court could act despite “activity” where that activity was a manipulation or abuse of process (para. 38);
Hogan J also stressed that there may be “special and exceptional” cases where proceedings are properly struck out despite some activity during the two‑year period.

Kennedy J inferred that if the Supreme Court had intended to impose a rigid binary rule, it would have said so in clear language. Instead, the court left room for flexibility and for the inherent jurisdiction to operate where the justice of the case so requires.

5.3.5 Focus on total inactivity and a conspectus view

Kennedy J emphasised the Supreme Court’s insistence that courts take a holistic view of the entire period of delay:

Murray J spoke of the need to focus on “the total length of time the plaintiff has been inactive”;
courts should concern themselves with “relatively substantial periods in which nothing is being done to move the case along” and ignore shorter “chunks” of less than six months;
this approach is conceptually inconsistent with a rule that only the final two years before the motion matter.

On that view, the plaintiff’s eight years of largely unexplained inactivity after April 2016, together with pre‑commencement delay, were determinative; a few steps in mid‑2024 could not erase that history.

5.3.6 Case law application: Primor, AIBP, and Guilfoyle

Kennedy J also noted that in:

Primor – the defendants applied to dismiss in response to a step taken by the plaintiff (a letter about discovery), yet the application was considered on its merits;
AIBP v Montgomery – the dismissal motion was prompted by the plaintiff’s application to amend pleadings after seven years of inactivity; no court suggested this procedural step insulated the case from dismissal;
Guilfoyle – a recent post‑Kirwan High Court decision – the same issue could have arisen, yet no suggestion was made that a lack of a fresh two‑year block barred dismissal.

If the plaintiff’s interpretation were correct, these authorities would have to be treated as wrongly decided – a conclusion the Supreme Court did not remotely endorse in Kirwan.

Accordingly, Kennedy J held that two years’ inactivity is a powerful benchmark but not a jurisdictional precondition. The courts remain free, particularly under the inherent jurisdiction, to dismiss stale proceedings where justice and the Kirwan framework point clearly in that direction, even in the absence of a fresh two‑year block immediately prior to the motion.

5.4 The conduct of the defendants and timing of the motion

The plaintiff argued that the applicants had themselves delayed in prosecuting the action or in bringing the dismissal motion after the June 2024 notice of intention to proceed.

Kennedy J, echoing Kirwan, rejected the notion that defendants bear any primary responsibility for “driving” litigation:

The carriage of proceedings rests with the plaintiff, who invokes the court’s jurisdiction and seeks to compel the defendant to answer the claim.
Defendants are not “co‑adventurers” in litigation; they generally obtain nothing positive from it apart from being restored to their prior position.
Defendants cannot fairly be criticised for “doing no more than is required to respond to a claim”.

As to the timing of the dismissal motion:

The notice of intention to proceed was served on 10 June 2024.
The applicants issued their dismissal motion on 28 November 2024 – about five and a half months later.

Kennedy J accepted that defendants must act reasonably promptly upon receipt of a notice of intention to proceed in a dormant case (as highlighted by Murray J in Kirwan). But he also stressed practical realities:

By 2024, the case had been dormant for many years; the applicants’ original solicitor had retired; files were likely archived; and a new legal team had to get up to speed.
New counsel had to be instructed and briefed on events dating back to 2006/2007.
The defendants, private individuals, needed time to understand the situation and fund an unexpected and unwelcome legal exercise.

In those circumstances, the five and a half months taken to bring the application was held to be reasonable and not disqualifying, especially measured against the plaintiff’s years of inactivity.

5.5 The balance of justice under the post‑Kirwan matrix

Applying the modified Primor/Kirwan test (and Murray J’s “trail” of three core variables), Kennedy J assessed:

Total periods of inactivity:
- significant pre‑commencement delay;
- approx. eight years of inaction (2016–2024), even on a generous view.
Reasons for delay:
- without prejudice negotiations: insufficient to explain multi‑year pauses;
- FOI requests: minor and time‑limited; could not justify continued dormancy after 2017;
- background work and counsel’s advices: too vague and unparticularised to carry weight;
- Covid‑19: a generic and unpersuasive justification in this case.
Effect on the defendants and the proceedings:
- the case involved a substantial amount of oral evidence (plaintiff’s own certificate of readiness indicated six factual witnesses plus an expert and a five‑day trial);
- memory decay, witness availability issues and general forensic disadvantage would be serious;
- additional prejudice: stress, health difficulties and the burden of protracted litigation, though some of these would have arisen in any event;
- retirement of the original solicitor compounded difficulties in re‑engaging with the case.

Under Kirwan, once cumulative inactivity surpasses four or five years in an oral‑evidence case, a presumption in favour of dismissal arises, and the onus falls on the plaintiff to show compelling reasons or a pressing exigency of justice to allow the case to proceed.

Kennedy J held that:

the plaintiff failed to offer any convincing or detailed explanation for its prolonged procrastination;
no “pressing exigency of justice” was demonstrated; indeed, there was some suggestion (though not formally found) that the plaintiff may have been content to retain the loan monies rather than press for specific performance;
while specific prejudice was not extreme, the general prejudice inherent in litigating a very stale claim was substantial, particularly given anticipated oral evidence.

The perceived strength of the plaintiff’s contractual claim – the fact that many points of liability were not in dispute – was not a material factor in this balancing exercise. As in Kirwan and Guilfoyle, the courts will not commence a mini‑trial of the merits on a delay application.

In the result, the balance of justice plainly favoured dismissal. The proceedings were accordingly struck out against the applicants pursuant to Order 122 and/or the inherent jurisdiction.

6. Key Legal Principles Emerging from the Decision

The judgment in Homes of Heritage crystallises several important points in the post‑Kirwan landscape:

No “clean slate” from token steps A plaintiff cannot defeat a want of prosecution application simply by taking minimal steps after years of delay. The court will look at the totality of delay, not just the final two‑year window.
Two years’ inactivity is a benchmark, not a jurisdictional precondition The two‑year period in Order 122, rule 11 is a critical milestone and “starting point” for analysis, but not an absolute requirement. Especially under the inherent jurisdiction, dismissal remains possible without a fresh two‑year block immediately preceding the motion.
Inherent jurisdiction and Order 122 co‑exist The inherent power to dismiss for want of prosecution survives alongside Order 122. Collins v Dublin Bus is reaffirmed as good law and continues to guide cases where some procedural activity has occurred but the litigation remains, in substance, moribund.
Focus on total inactivity and substantial periods Courts should adopt a “conspectus” approach to substantial chunks of inactivity since the events giving rise to the claim, rather than mechanically summing or isolating short gaps.
Background work must be concrete and particularised Internal activity, FOI requests, or counsel’s advices may explain delay, but only if:
- they are specifically substantiated (dates, steps, necessity, outcomes); and
- they truly justify the length of the hiatus, especially in a straightforward case.
Vague references to background work carry little weight.
Covid‑19 is not a blanket excuse Simply invoking the pandemic will not excuse long periods where no inter partes steps were taken and where the litigation could, in reality, have been progressed.
Defendants are not obliged to push the plaintiff’s case Carriage of litigation rests on the plaintiff; defendants may wait passively and are not blameworthy for failing to take initiatives in stale proceedings, though they must act reasonably promptly once a notice of intention to proceed is served.
Affidavits must come from those with first‑hand knowledge For matters of the client’s decision‑making and strategy, affidavits should normally be sworn by the client (e.g. company directors), not just by the solicitor. Lack of direct client evidence can critically undermine attempts to justify delay.
Strength of the claim is generally irrelevant Even a seemingly strong claim may be dismissed for want of prosecution. Courts will not, save in exceptional cases, weigh the underlying merits in the balance.
Equitable relief and pre‑commencement delay heighten the plaintiff’s burden Where equitable remedies like specific performance are sought, and where proceedings were themselves delayed in being commenced, courts will scrutinise subsequent delays particularly closely.

7. Impact and Future Significance

7.1 Implications for plaintiffs

For plaintiffs, especially commercial entities and property developers, Homes of Heritage underscores:

The need to actively manage litigation. Relying on occasional settlement correspondence, unspecified background work or intermittent counsel’s advices will not protect a claim from dismissal after long inactivity.
The importance of prompt action after discovery is complete. Here, the plaintiff could realistically have set the case down for trial by 2016–2017; doing nothing until 2024 was fatal.
The risk that, even with a strong contractual claim, the entire action may be lost purely on grounds of delay, particularly where oral evidence is required.
The advisability of:
- maintaining clear internal records of steps taken and their timing; and
- ensuring that directors and key decision‑makers are able and willing to swear detailed affidavits explaining any periods of apparent dormancy.

7.2 Implications for defendants

For defendants, the decision offers:

Confirmation that they can still apply to dismiss even where the plaintiff has taken recent steps, provided there has been substantial cumulative inactivity and no convincing justification.
Guidance that on receipt of a notice of intention to proceed in a long‑dormant case they should:
- act reasonably promptly, but not necessarily immediately;
- take time, where needed, to retrieve files, instruct new solicitors/counsel and assess whether a dismissal motion is appropriate.
Encouragement to rely on the inherent jurisdiction and the continuing authority of Collins, especially where token procedural steps have been taken shortly before a motion.
A strategic model, from Guilfoyle and now Homes of Heritage, of using undertakings (e.g. to discontinue related proceedings) to neutralise fairness arguments raised by plaintiffs.

7.3 Systemic and case‑management effects

At a systemic level, the judgment reinforces the trajectory set by Kirwan:

Stale proceedings are at serious risk of being culled, particularly after four or more years of inactivity.
Courts are likely to take a tougher line in the Commercial List and Chancery/properties lists where dormant claims consume registry and listing resources.
The decision provides High Court judges with greater confidence to exercise the “generous power” of dismissal in severe delay cases, secure in the knowledge that:
- the inherent jurisdiction remains robust; and
- a mechanical two‑year prerequisite was not intended by the Supreme Court.

8. Complex Concepts Explained

8.1 Want of prosecution

An application to dismiss for want of prosecution is one made by a defendant arguing that the plaintiff has failed to progress the case within a reasonable time, such that it should be struck out in the interests of justice. It may be grounded on:

Order 122, rule 11 (after two years’ inactivity); and/or
the inherent jurisdiction of the court to control its own process.

8.2 Order 122, rule 11 RSC

This rule provides:

after one year without a procedural step, a plaintiff who wishes to proceed must give a notice of intention to proceed; and
after two years without a procedural step, a defendant may apply to dismiss for want of prosecution.

It focuses on steps on the court record (e.g. filing pleadings, motions, setting down the case). Private negotiations and internal work do not count as “proceedings” for this rule.

8.3 Inherent jurisdiction

The inherent jurisdiction is the court’s power, arising from its constitutional role, to regulate its own process so that justice is done and abuse of process is prevented. It allows the court to:

strike out frivolous or vexatious claims;
dismiss for want of prosecution where the delay is inordinate and inexcusable; and
act in situations not fully covered by the Rules of Court.

8.4 The O’Domhnaill jurisdiction

Distinct from the above is the jurisdiction from O’Domhnaill v Merrick, where proceedings may be dismissed even if the plaintiff is blameless because the lapse of time has made a fair trial impossible (e.g. key witnesses have died). This “fair trial impossible” jurisdiction was not invoked in Homes of Heritage; the focus was on culpable delay.

8.5 Specific performance

Specific performance is an equitable remedy compelling a party to perform their contractual obligation (such as completing a sale of land) rather than merely paying damages. Because it is discretionary, a plaintiff seeking specific performance must come to court with “clean hands” and without undue delay; prolonged inaction can be a powerful ground for refusal.

8.6 Laches

Laches is an equitable defence based on delay and acquiescence. Even where a claim is within the statutory limitation period, equity may refuse relief if the plaintiff has slept on their rights in a way that makes it unjust to grant the relief sought.

8.7 Pre‑commencement delay

This refers to delay before proceedings are issued. While issuing within the limitation period is usually sufficient to keep the claim formally alive, Kirwan and subsequent cases make clear that pre‑commencement delay still:

counts in assessing whether the plaintiff has acted diligently overall; and
heightens the duty to prosecute the case expeditiously after issue.

8.8 Freedom of Information (FOI) and its limits

Parties sometimes use FOI requests to obtain documents from public bodies relevant to their claims. FOI can, in principle, justify some delay if:

it is genuinely necessary to gather evidence; and
the process is pursued expeditiously and explained fully to the court.

However, as shown in Guilfoyle and now Homes of Heritage, courts will not accept FOI as a blanket excuse for long‑term dormancy, especially where the essential issues are legal or can be litigated without waiting for FOI outcomes.

9. Conclusion

Homes of Heritage Ltd v Cunningham & Ors is a significant post‑Kirwan authority that clarifies the law on dismissal for want of prosecution in Ireland. Kennedy J confirms that:

the inherent jurisdiction to dismiss survives and operates alongside Order 122;
the two‑year period of inactivity drawn from Order 122 is a benchmark, not a strict jurisdictional precondition; and
plaintiffs cannot rely on token or belated steps to launder a history of inordinate and inexcusable delay.

The decision reinforces the jurisprudential direction set by Kirwan: time matters in and of itself; the justice system cannot be held hostage to stale claims; and plaintiffs must pursue litigation with reasonable expedition, particularly when seeking equitable remedies. Where they fail to do so, and where no compelling justificatory narrative is offered, the courts will not hesitate to bring proceedings to an end – even in the face of seemingly strong underlying claims.

In that sense, the case stands as a clear reminder that procedure and timeliness are not mere technicalities; they are integral to the proper administration of justice. The message is unmistakable: there is no clean slate for token steps after years of delay.