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Dooley v Florentine Properties Ltd and Anor (Approved)
Summary of High Court Opinion
Factual and Procedural Background
The Plaintiff commenced plenary proceedings on 12 March 2013 against Company A and Company B alleging breach of contracts dating from 2005 and an alleged breach in November 2010. Appearances for the Defendants were entered in March 2013. No statement of claim was delivered until 19 June 2016 and a copy was not served on the Defendants' solicitors (Law Firm B) until 17 August 2016. The Plaintiff's original solicitors (Law Firm A) dissolved in 2015 and the Plaintiff proceeded for lengthy periods as a lay litigant. Notices of intention to proceed were issued on 16 May 2022 and 9 August 2023. Multiple statements of claim were later delivered (August 2023 and August 2024) without prior leave of the court. Aggregate periods of inactivity after commencement exceed ten years. The Defendants applied to strike out the proceedings for want of prosecution under O.122 r.11 and pursuant to the court's inherent jurisdiction for inordinate and inexcusable delay. The hearing was before Judge Jordan, with written and oral submissions exchanged and evidence including medical records and correspondence from the Plaintiff.
Legal Issues Presented
- Whether the proceedings should be struck out for want of prosecution under Order 122, rule 11 and/or pursuant to the court's inherent jurisdiction for inordinate and inexcusable delay.
- Whether, in light of the Supreme Court decision in Kirwan v Connors & Ors. [2025] IESC 21, the Plaintiff has established exceptional or extenuating circumstances sufficient to avoid strike-out where there is total unexplained delay in excess of five years.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff conceded his procedural history reflected prolonged inactivity but argued his cumulative personal circumstances (severe financial distress after the 2008 crash, progressive physical and mental health problems, loss of solicitors, lay-litigant status and misguided attempts to engage with the proceedings) constituted extenuating or exceptional circumstances under the authorities cited.
- The Plaintiff submitted that pre- and post-Kirwan authorities remain relevant and that a combination of extraneous factors (financial hardship, health issues, bereavement-type analogies and other litigation involvement) could, cumulatively, excuse delay and that, where such circumstances are shown, the absence of significant prejudice to the Defendants becomes highly relevant.
- The Plaintiff pointed to prior receipt of an opinion of Senior Counsel (August 2015) and assorted attempts to engage (correspondence, statements of claim, notices of intention to proceed) as part of his overall explanation.
Defendants' Arguments
- The Defendants argued the Plaintiff's delay was inordinate and inexcusable, that the threshold for discretionary strike-out under Kirwan was met (total unexplained delay well in excess of five years), and that prejudice need not be shown where delay is egregious unless the Plaintiff can establish exceptional circumstances.
- The Defendants submitted that the Plaintiff's later conduct (multiple statements of claim without leave, long periods with no progressing step, and formal inactivity since June 2016) did not amount to the exceptional circumstances required; and they relied on evidence (including other litigation showing the Plaintiff's capacity to litigate) to rebut claims of incapacity to prosecute.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kirwan v Connors & Ors. [2025] IESC 21 | Modern statement of principles governing strike-out for delay; clarifies that prejudice is not a cardinal requirement where delay is egregious and outlines scrutiny levels for different inactivity periods. | The court applied Kirwan as the touchstone; found total unexplained delay well in excess of five years and concluded Kirwan's framework required the Plaintiff to show exceptional circumstances, which were not established. |
| Guerin v Guerin [1992] 2 IR 287 | Example of exceptional circumstances (educational, social or economic disadvantage) that may justify permitting a delayed claim to proceed. | Considered as an authority identifying the type of rare exceptional circumstances that could outweigh long delay; court found such circumstances not shown here. |
| McKenna v Farrell [2007] IEHC 343 | Instances where public law importance may justify litigating despite delay. | Mentioned as an example of exceptional public‑interest cases; the court found this case did not raise comparable public‑law exigencies. |
| Anglo Irish Beef Processors v Montgomery [2002] 3 IR 510 | Referenced as part of prior authority on delay and excuses. | Not relied on to override Kirwan; cited by the Plaintiff in support of cumulative excuses but court did not find it determinative. |
| McLoughlin v Garvey [2015] IECA 80 | Support for cumulative assessment of extenuating factors where individually insufficient. | Considered by the court; Plaintiff relied on its approach but overall evidence did not satisfy the exceptional-circumstances threshold. |
| Gaffney v Commissioner of an Garda Síochána [2017] IECA 52 | Cited regarding treatment of cumulative extenuating factors and citation of McLoughlin. | Referred to in submissions; court noted the relevance but concluded cumulative factors here were insufficient. |
| Johnson v Calor Teoranta [2018] IEHC 409 | Holds bereavement may excuse otherwise culpable delay; supports relevance of personal circumstances. | Noted by the court; the Plaintiff's personal circumstances were assessed against this line but did not meet the required standard. |
| Drug & Machinery Sales Ltd v General Accident & Anor. [1999] IEHC 201 | Authority for considering extraneous activities and surrounding circumstances in evaluating excuses for delay. | Quoted in submissions and considered; the court balanced extraneous factors but found them insufficient to prevent strike-out. |
| Ulster Bank & Ors. v McDonagh & Ors. [2020] IEHC 185 | Not a delay authority; factual relevance demonstrating the Plaintiff's capacity to participate in litigation. | Used by the court to show the Plaintiff had been active and capable in other litigation, undermining claims of incapacitating illness preventing prosecution. |
| PSRA v Dooley [2023] IEHC 419 | Factual precedent showing the Plaintiff's prior regulatory litigation and engagement. | Relied on by the court as evidence the Plaintiff was able to litigate at times during the period of alleged incapacity. |
| PSRA v Dooley [2023] IECA 251 | Appeal (factual/posture) showing continued involvement in litigation. | Referenced to demonstrate the Plaintiff's active litigation posture in other proceedings. |
| PSRA v Dooley [2025] IESC DEG 53 | Application for leave to the Supreme Court (factual/posture). | Noted as further procedural history of related litigation; the Plaintiff's leave application was refused. |
| Kirwin | Reference (variant spelling in the text) to the Kirwan authority and citation of the Chief Justice's observations about evidence degradation over time. | The court relied on the observations attributed to the Chief Justice (as cited) regarding evidential degradation over long periods when assessing likely prejudice and reliability of evidence. |
Court's Reasoning and Analysis
The court examined the procedural timeline and the Plaintiff's evidence of personal circumstances. It noted: extensive pre‑commencement delay; issuance in March 2013 but the first statement of claim only in June 2016 and service in August 2016; no substantive step constituting a 'proceeding' under O.122 r.11 since June 2016; subsequent improperly delivered statements of claim without leave; aggregate inactivity well over ten years; and total unexplained delay exceeding five years.
The court accepted that Kirwan governs the approach: where unexplained total delay exceeds five years, a plaintiff must show exceptional circumstances or a pressing exigency of justice to avoid dismissal. The Plaintiff's case for exceptional circumstances rested on severe financial distress after the 2008 crash, progressive physical and mental health problems, loss of solicitors and lay-litigant status, receipt of a Senior Counsel opinion in 2015, and various attempts at engagement (correspondence, notices of intention to proceed).
In evaluating those matters the court considered contemporaneous documentary and medical material, correspondence and the Plaintiff's participation in other litigation and regulatory proceedings (including the Ulster Bank litigation and Regulatory Authority proceedings). The court found the medical evidence did not establish incapacity to prosecute, that the Plaintiff had been active in other litigations (demonstrating capacity to litigate during the relevant period), and that many of the Plaintiff's activities (misguided attempts to engage, improperly delivered pleadings) did not amount to lawful steps to advance proceedings under the rules.
The court concluded that the Plaintiff had not established the kind of exceptional circumstances identified in authorities such as Guerin and related cases. Applying Kirwan, the total unexplained delay justified dismissal. The court also held that evidence degradation and the likely unavailability or fading memory of witnesses after 15 years would probably cause significant prejudice to the Defendants should the case proceed.
Holding and Implications
ORDER: The proceedings are dismissed for want of prosecution.
Direct effect: The Plaintiff's current plenary proceedings against Company A and Company B are dismissed. The court listed a mention to deal with costs and any consequential matters. The judgment does not purport to establish a novel legal principle beyond the application of Kirwan; it applies existing authorities to the particular facts and concludes no exceptional circumstances justified permitting the delayed action to proceed.
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