Factual and Procedural Background
The Plaintiff sued the Defendant, a solicitor, alleging non-performance of a solicitor’s undertaking given in connection with a loan transaction involving two Borrowers. The loan was secured, or intended to be secured, over four properties, including Property A, Property B, Property C and Property D. The Defendant undertook to ensure that title and mortgage documentation were properly completed before loan proceeds were released. [1][2][3][4]
Only part of the loan was drawn down. The Defendant alleged that he had been released from the undertaking regarding Property A during a telephone conversation, which the Plaintiff disputed. By 2007, the required mortgages had not been put in place. An unserved plenary summons was issued in 2009, and the proceedings were commenced by Special Summons in June 2012. [5][6][7][8]
The action progressed until 2014, after which eleven consent adjournments were granted before the matter was remitted to plenary hearing in 2018. A Statement of Claim was delivered later that year. The interests in the loan and security were successively transferred to different entities before the Plaintiff was substituted in July 2021. [9][10][11]
There was no identifiable procedural activity in the action from late 2021 until the Defendant brought the present motion on 31 March 2025. During that period, the Plaintiff pursued negotiations and separate remedies concerning Property B and Property C. [12][13][14][15]
The Defendant applied to strike out the proceedings for want of prosecution under Order 122 rule 11 of the Rules of the Superior Courts. [1][16]
Legal Issues Presented
- Whether the jurisdiction to dismiss for want of prosecution under Order 122 rule 11 had been engaged. [16]
- How the periods of inactivity should be assessed under the framework in Kirwan v Connors. [17][18]
- Whether consent adjournments, substitution applications, negotiations, the Covid-19 disruption and the pursuit of alternative remedies excused or reduced the relevant delay. [19][20][21][22]
- Whether the separate claims relating to Property A, Property B and Property C could be severed, allowing some claims to proceed while dismissing another for want of prosecution. [23][24]
Arguments of the Parties
Defendant's Arguments
- The Defendant sought dismissal for want of prosecution based on the absence of a proceeding for more than two years. [1][16]
- He attributed delays in the original transaction to difficulties describing Property A and maintained that he had been released from the undertaking as to that property. [5]
- He relied on the prolonged inactivity in the proceedings and the prejudice caused by the passage of time, particularly concerning the alleged telephone release. [25][26]
Plaintiff's Arguments
- The Plaintiff relied on the procedural significance of the consent adjournments and substitution applications. [27][28]
- It relied on negotiations, the Covid-19 disruption and its pursuit of alternative remedies concerning Property B and Property C to explain the inactivity. [29][21][14]
- The Plaintiff contended that the claims relating to Property C and Property B could proceed because they were not materially dependent on oral evidence and the Defendant would not be impaired in defending them. [30][31]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Ó Domhnaill v Merrick [1984] IR 151 |
An alternative framework for dismissal for delay. |
The Defendant expressly did not rely on this framework. [17] |
| Kirwan v Connors [2025] IESC 21 |
The governing framework for assessing delay and want of prosecution, subject to avoiding a rigid or mechanical approach. |
The Court applied its categorisation of delay, including the relevance of inactivity, prejudice and compelling reasons to proceed. [17][18][32] |
| Walker v Wilsher (1889) 23 QBD 335 |
The fact of without-prejudice negotiations may be admissible to explain delay, although their content remains privileged. |
The parties’ negotiations between September and November 2021 were treated as relevant and excusable delay. [29][33] |
| Unilever plc v Procter & Gamble [2000] 1 WLR 2436 |
The admissibility of the fact of without-prejudice negotiations to explain delay. |
The Court accepted the evidential relevance of the negotiations without relying on their contents. [29] |
| Pepper Finance Corporation (Ireland) DAC v Roche [2024] IEHC 567 |
Consent adjournments may render resulting delay excusable, and a substitution order may constitute a “proceeding”. |
The Court relied on these principles in assessing the consent adjournments and substitution applications. [34][28] |
| Bank of Ireland Mortgage Bank v Lawlor [2025] IEHC 617 |
Inactivity during the Covid-19 disruption may be excused. |
The Court allowed equivalent latitude and treated eight months of pandemic-related inactivity as excusable. [35][21][36] |
| Comcast International Holdings Inc v Minister for Public Enterprise [2012] IESC 50 |
External proceedings or remedies may explain delay where meaningfully connected to the claim, but may not justify an excessive or open-ended pause. |
The Court treated the alternative property remedies as relevant, while scrutinising their duration, delays and connection to the action. [37][22][38] |
| Doyle v Commissioner of An Garda Síochána [2025] IEHC 591 |
The relevance of distinguishing external complaints or proceedings that are not necessary to the prosecution of the claim. |
The Court distinguished the present case because the alternative property remedies were meaningfully connected to the losses claimed. [39][40][22] |
| Ryanair v Aer Rianta [2004] 1 IR 506 |
A power to strike out a pleading did not, in the relevant procedural context, necessarily include power to strike out part of a pleading. |
The Court distinguished the decision and held that Order 122 rule 11 and the inherent jurisdiction permitted partial dismissal in an appropriate case. [41][42][24] |
| Primor |
The pre-existing approach under which consent to an adjournment could make resulting delay excusable. |
The Court referred to this principle as consistent with treating the Defendant’s repeated consent as relevant acquiescence. [43][34] |
Court's Reasoning and Analysis
The Court held that the Order 122 rule 11 jurisdiction was triggered because there had been no “proceeding” in the action for more than two years before the motion. The relevant period ran from the Plaintiff’s substitution on 28 July 2021 to the motion on 31 March 2025. [16]
The Court then assessed the aggregate inactivity rather than mechanically treating every period separately. The period before commencement of the proceedings was excluded. The period from 2012 to 2014 involved no asserted inordinate delay. The eleven consent adjournments between 2014 and 2018 each constituted a proceeding because they involved court listings, appearances and formal dispositions. Their resulting inactivity was not aggregated, particularly because the Defendant positively consented to each adjournment. [44][45][19][46][47]
The applications substituting successive plaintiffs were also proceedings because they required affidavits, court applications and orders. However, the gaps between those applications could still be considered when assessing aggregate inactivity. Two months after delivery of the Statement of Claim and eight months during the Covid-19 disruption were treated as excusable. [20][48][49][21][36]
The pursuit of alternative remedies was relevant because the remedies concerning Property B and Property C could affect the amount and heads of loss in the present action. Nevertheless, the Court found that the prolonged and unsuccessful strategy concerning Property B did not adequately excuse delay. Similar concerns applied to Property C, although the Defendant’s encouragement to pursue separate well-charging proceedings was a significant countervailing factor. [22][50][51][52]
For the period from July 2021 to March 2025, the Court treated the negotiations as excusable. It criticised the Plaintiff’s decision to pursue an unsuccessful registry application concerning Property B for approximately two years, but allowed credit for the later court application that resolved the issue. The delayed pursuit of proceedings concerning Property C would ordinarily not have been treated as active prosecution, but the Defendant’s apparent encouragement to prioritise those proceedings was uncontradicted and materially affected the assessment. [33][53][54][55]
Without taking account of that encouragement, the Court calculated approximately four and a half years of unexcused inactivity. This placed the case within the third category identified in Kirwan, where dismissal may follow if the claim depends on oral evidence and the passage of time creates risks of unreliable recollection or witness reluctance, unless compelling reasons justify a trial. [56][32]
The claim concerning Property C was not heavily dependent on oral evidence, and the Defendant’s encouragement to pursue related proceedings strongly favoured allowing it to continue. The claim concerning Property B likewise involved facts that were unlikely to depend on oral evidence, and the Court was satisfied that the Defendant’s defence would not be impaired. Compelling reasons therefore existed for both claims to proceed. [30][31]
By contrast, the Property A claim depended centrally on whether the Defendant had been released during a telephone conversation in 2003. The passage of approximately 23 years created serious difficulties concerning the recollection, availability and usefulness of witnesses, and could impair the Defendant’s own ability to recall surrounding circumstances. The Plaintiff had not shown compelling reasons sufficient to overcome that prejudice. [57][26]
The Court concluded that it had jurisdiction to sever readily separable elements of an action on a motion for want of prosecution. Order 122 rule 11, the existing understanding of severance in multi-party proceedings and the surviving inherent jurisdiction supported a flexible approach. The Court rejected an “all or nothing” result because the different claims were affected differently by delay and by the Defendant’s encouragement concerning Property C. [23][24][58][59]
Holding and Implications
PARTIAL DISMISSAL GRANTED. The claim concerning Property A, also described as the Coast Road property, was dismissed for want of prosecution. The claims concerning Property B and Property C were permitted to proceed, and the application to dismiss those claims was refused. [60]
The direct effect was therefore a severance of the action: one element was dismissed because delay had materially impaired oral evidence, while the other two elements remained capable of fair determination. No broader implication beyond this case was identified, and no new precedent was stated apart from the Court’s conclusion that partial dismissal may be available under Order 122 rule 11 in an appropriate case. [24][60]