Irish Supreme Court Sets New Strict Rules for Dormant Cases

In a seismic shift that promises to reshape the landscape of civil litigation in Ireland, the Supreme Court has delivered a landmark judgment that effectively ends the culture of tolerance for delay in legal proceedings. The ruling in Kirwan v Connors & Ors [2025] IESC 21 has dismantled the long-standing frameworks that previously allowed dormant cases to linger in the court lists for years, replacing them with a strict, time-based regime that prioritises the efficient administration of justice.

Delivered on 30 May 2025, the unanimous decision by the Supreme Court signals a definitive departure from the subjective assessments of the past. By recalibrating the test for dismissing actions for ‘want of prosecution’, the Court has sent a stark warning to plaintiffs and legal practitioners alike: the passage of time is no longer a neutral factor, but a potent weapon that can, in and of itself, terminate a claim.

The End of the Primor Era

For nearly three decades, the Irish courts operated under the guidance of the ‘Primor principles’, established in the 1996 case Primor v Stokes Kennedy Crowley. This framework served as the primary mechanism for determining whether a case should be struck out due to delay. It was a three-legged stool of analysis: the court had to determine if the delay was inordinate, if it was inexcusable, and finally, where the ‘balance of justice’ lay.

While the Primor test was designed to ensure fairness, in practice, it often became a safety net for dilatory plaintiffs. Even when a delay was found to be both inordinate and inexcusable, the ‘balance of justice’ leg of the test frequently allowed cases to survive. Courts would weigh various subjective factors, such as the potential prejudice to the defendant versus the plaintiff’s right to access the courts. Over time, this evolved into a cumbersome assessment involving a broad range of considerations, including whether the defendant had actively sought to speed up the case or the adequacy of excuses provided by legal teams.

This approach set an exceptionally high bar for defendants seeking to have claims dismissed. It resulted in a legal environment where cases could drift aimlessly for years without fatal consequences, creating uncertainty and clogging the judicial system. The Kirwan judgment has now decisively closed this chapter, stripping away the vagueness of the old test and replacing it with hard, chronological boundaries.

The Kirwan Case: A Chronicle of Inertia

To understand the magnitude of this legal pivot, one must look at the facts of the Kirwan case itself. The dispute arose from a failed property venture dating back to 2005 and 2006 involving the plaintiff and his former solicitor. Despite the events occurring in the mid-2000s, proceedings were not issued until 2013. More critically, following the initiation of the lawsuit, the case entered a period of profound stagnation. For over four years, no meaningful steps were taken to progress the litigation.

In 2018, the defendants, weary of the hanging sword of litigation, applied to dismiss the action for want of prosecution. They argued that the delay was both inordinate and inexcusable. The High Court agreed, granting the dismissal in September 2019, a decision subsequently affirmed by the Court of Appeal in 2022. The plaintiff’s final appeal to the Supreme Court resulted in the judgment that has now rewritten the rulebook.

In upholding the dismissal, Chief Justice O’Donnell delivered a cutting rationale, noting that the law must recognise that the “passage of time is important in and of itself, and can justify dismissal of a claim, without more.” This statement overturns the previous assumption that delay required specific proof of prejudice to warrant dismissal. Under the new regime, the clock is the judge.

The New Chronological Tiers of Justice

The Kirwan decision does not merely critique the old system; it constructs a new, predictable architecture for case management. The Supreme Court has introduced a tiered system based on periods of total inactivity, referencing Order 122, Rule 11 of the Rules of the Superior Courts. This rule, which permits dismissal after two years of inactivity, has been elevated from a procedural technicality to a central pillar of judicial reasoning.

The Court has outlined four distinct categories of delay, each carrying its own presumption and burden of proof:

1. Under Two Years of Inactivity: In the early stages of delay, the courts remain relatively lenient. Dismissal in this category is described as “exceptional”. It is generally reserved for egregious situations where the delay constitutes an abuse of process or where the prejudice to the defendant is so severe that a fair trial has become impossible.

2. After Two Years: Once the two-year threshold is crossed, the judicial mood shifts. Dismissal becomes a viable option if, alongside the inactivity, there are other aggravating factors or evidence of prejudice. The two-year mark serves as a statutory warning shot; beyond this point, a plaintiff is on borrowed time.

3. After Four Years: This is arguably the most significant shift. At the four-year mark of inactivity, a “presumption of dismissal” arises, particularly in cases that turn on oral evidence. The Court recognised that human memory is fallible and degrades over time. Consequently, a trial held decades after the fact based on oral testimony is inherently unfair. In this tier, the onus shifts dramatically to the plaintiff to provide “compelling reasons” why the claim should be allowed to survive.

4. After Five Years: The final tier represents the end of the line for most stagnant cases. After five years of inactivity, the court exercises a broad discretion to dismiss. Continuation of proceedings at this stage is permitted only in “exceptional circumstances”, such as cases involving significant public interest or serious misconduct by the defendant. Vague excuses or administrative oversights will no longer suffice.

The Philosophy of Inherent Prejudice

At the heart of the Kirwan judgment is the recognition of “inherent evidential prejudice”. Under the Primor test, defendants often had to prove specific prejudice—for example, that a key witness had died or documents had been destroyed. The Supreme Court has now acknowledged that the mere passage of time degrades the quality of justice.

This is particularly relevant in cases reliant on oral testimony. The Court emphasised that the ability of witnesses to recall events accurately diminishes significantly as years pass. Therefore, a delay is not a victimless procedural error; it is a substantive erosion of the right to a fair trial. By validating the concept that delay alone undermines the constitutional requirement for the administration of justice, the Supreme Court has aligned Irish procedure with a more modern, efficient philosophy of litigation.

Immediate Impact: The Domino Effect

The Kirwan judgment is not merely theoretical; its impact was felt almost immediately in the lower courts, resulting in a wave of dismissals that serve as cautionary tales for the legal profession.

In Nowak v Institute of Chartered Accountants in Ireland [2025] IEHC 408, the High Court applied the new strictures to a case that had lain dormant for over eight and a half years. The plaintiff had sought voluntary discovery in November 2015, to which the defendant replied. Following this exchange, silence descended until May 2024. Under the old rules, a debate might have ensued regarding the balance of justice. Under Kirwan, the case fell squarely into the fourth category of delay. The Court found no “pressing necessity” to allow the case to continue and struck out the action, citing the plaintiff’s failure to comply with court rules.

Similarly, the High Court utilised the new framework in Murphy v Aer Lingus Group plc & Anor [2025] IEHC 589. Here, the plaintiff’s claim was dismissed due to cumulative periods of inactivity totalling more than five years. The court noted that the defendants had made repeated efforts to progress the proceedings, which were met with inertia. Crucially, the court highlighted that the case would have required oral testimony from multiple parties. Applying the Kirwan logic, the prolonged delay had rendered a fair trial impossible due to the degradation of memory, heightening the prejudice against the defendants.

Perhaps the most stark example occurred in Doyle v Commissioner of An Garda Síochána [2025] IEHC 591. In this instance, the delay was described as significant, including a staggering 15-year period where no statement of claim was delivered, alongside long stretches of complete inactivity. The Court found the delay to be unsupported by any compelling justification. Applying the Kirwan framework, the dismissal was inevitable. The case serves as a stark reminder that the courts will no longer indulge cases that have been effectively abandoned by plaintiffs, only to be revived years later.

A New Reality for Litigators

The Kirwan decision represents an evolution rather than a complete revolution, as the basic structure of Primor remains visible in the background. However, the shift in emphasis is profound. The “balance of justice”, once the saviour of tardy plaintiffs, is now heavily weighted against them once the chronological thresholds are breached.

For solicitors and barristers, this judgment necessitates a rigorous review of case files. The days of “warehousing” claims or allowing files to gather dust while waiting for developments are over. The clear parameters set by the Supreme Court mean that inactivity is now a ticking clock counting down to dismissal.

Ultimately, Kirwan v Connors enhances predictability within the Irish legal system. It reduces the tolerance for prolonged inactivity and reinforces the constitutional importance of a fair and expeditious administration of justice. For defendants, it offers a shield against the anxiety of indefinite litigation. For plaintiffs, it offers a simple, non-negotiable instruction: move the case forward, or lose it entirely.