Nowak v Institute of Chartered Accountants in Ireland (Approved)

Factual and Procedural Background

The Plaintiff commenced proceedings against the Defendant by issuing a plenary summons on 11 February 2015. The Plaintiff sought damages and various declarations related to alleged negligence, breach of duty, bad faith, and breaches of data protection laws, arising from the marking and administration of professional examinations conducted by the Defendant. The Plaintiff’s training contract with Company A was terminated following multiple failures in a particular examination. The Plaintiff alleged fraudulent alteration of examination marks, forgery of documents, and breaches of examination regulations and data protection duties by the Defendant.

The Defendant filed a full defence in November 2015, characterizing the Plaintiff’s claims as frivolous and vexatious, and noting that some claims had been addressed in prior proceedings. After initial steps in 2015, the Plaintiff took no further action until May 2024, when he issued a motion seeking a preliminary trial on points of law. The Defendant then applied to strike out the Plaintiff’s action for want of prosecution pursuant to Order 122, rule 11 of the Rules of the Superior Courts (RSC) and the court’s inherent jurisdiction.

The court considered the recent Supreme Court decision in Kirwan v. Connors & Ors. [2025] IESC 21, which clarified the approach to striking out proceedings for delay, particularly emphasizing the importance of the passage of time and the procedural requirements under Order 122, rule 11 RSC.

Legal Issues Presented

1. Whether the Plaintiff’s failure to take any step in the proceedings for approximately eight and a half years constitutes grounds for striking out the action for want of prosecution under Order 122, rule 11 RSC.
2. Whether the Plaintiff’s motion seeking a preliminary trial on points of law can be treated as a notice of intention to proceed, thereby preventing the running of the two-year inactivity period under Order 122, rule 11 RSC.
3. Whether there was any implied agreement or acquiescence by the Defendant to postpone the proceedings, which would preclude striking out for delay.
4. Whether any pressing exigency of justice exists that would justify permitting the case to proceed despite the delay.

Arguments of the Parties

Defendant's Arguments

• The Plaintiff took no substantive step in the proceedings from December 2015 until May 2024, a period exceeding two years, triggering the Defendant’s right under Order 122, rule 11 RSC to seek dismissal for want of prosecution.
• The Plaintiff did not serve a notice of intention to proceed as required by Order 122, rule 11 RSC before issuing his motion for a preliminary trial, and such a motion is not equivalent to such a notice.
• The Defendant denies any implied agreement or acquiescence to postpone the proceedings. Correspondence from June 2015 shows the Plaintiff rejected any proposal to delay the case, and subsequent conduct confirmed the Plaintiff’s intention to progress the litigation.
• The Defendant contends that any delay caused by the Plaintiff pursuing other litigation does not excuse the failure to prosecute this case, particularly given the serious allegations involved.
• The Defendant argues that the absence of certain witnesses due to retirement or departure further undermines the Plaintiff’s position after such a lengthy delay.

Plaintiff's Arguments

• The delay in prosecuting the case was excusable because the Plaintiff was engaged in multiple other related legal proceedings involving appeals.
• The Plaintiff contends that the Defendant was aware of and agreed, either expressly or by acquiescence, to postpone the proceedings pending resolution of other cases.
• The Plaintiff asserted that his motion for a preliminary trial should be treated as a notice of intention to proceed under Order 122, rule 11 RSC.
• He argued that it is in the interests of justice to allow him to complete his other litigation before proceeding with this case.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began its analysis by referencing the Supreme Court’s decision in Kirwan v. Connors & Ors., which emphasized the centrality of the passage of time in deciding applications to strike out for want of prosecution. The court noted that a period of two years of inactivity triggers a defendant’s right to bring such an application, and a cumulative period of five years or more permits a broad discretion to dismiss the case unless there is a pressing exigency of justice.

In the present case, the last substantive step taken by the Plaintiff was a voluntary discovery request in December 2015, followed by no further steps until a motion in May 2024, an inactivity period of approximately eight and a half years. This clearly fell within the category warranting dismissal unless exceptional circumstances existed.

The court rejected the Plaintiff’s argument that the motion for a preliminary trial constituted a notice of intention to proceed. It explained that the purpose of such a notice is to give the opposing party one month’s warning of intent to proceed after a year of inactivity, which the motion did not satisfy. Additionally, under Order 122, rule 11 RSC, a motion on which no order is made is not deemed a proceeding, reinforcing that the Plaintiff’s motion did not interrupt the running of the inactivity period.

Regarding the alleged implied agreement or acquiescence by the Defendant to delay proceedings, the court found no basis for such a conclusion. Correspondence from June 2015 showed the Plaintiff explicitly rejected a proposal to postpone the case. The Defendant’s subsequent inactivity was characterized as mere silence, not acquiescence or encouragement of delay, which does not preclude an application to strike out.

The court further noted that the Plaintiff’s letter in December 2016 referring to a delay pending other proceedings did not bind the Defendant, especially as those other proceedings were struck out by February 2017. There was no obligation on the Defendant to inquire further or to postpone the case indefinitely.

The Plaintiff’s argument that he should be allowed to delay prosecution due to concurrent litigation was dismissed as unfounded. The court emphasized that the Plaintiff bears the obligation to proceed with litigation according to procedural rules and cannot unilaterally impose delays on the Defendant.

Finally, the court found no pressing exigency of justice to justify allowing the case to proceed despite the extensive delay and absence of procedural compliance. The serious nature of the allegations did not outweigh the prejudice and inefficiency caused by the delay.

Holding and Implications

The court’s final decision was to STRIKE OUT the Plaintiff’s action for want of prosecution. The Plaintiff’s motion seeking a preliminary trial was also struck out as part of the general order.

The Defendant was provisionally entitled to costs of the action and motions, subject to adjudication if no agreement was reached. The matter was scheduled for final argument on costs.

The direct effect of this decision is the dismissal of the Plaintiff’s claims against the Defendant due to procedural delay. The court did not establish any new legal precedent beyond applying the principles recently clarified by the Supreme Court in Kirwan v. Connors & Ors.