Kirwan v Connors: Reforming the Test for Legal Delay

A New Era of Judicial Efficiency in Ireland

In the often slow-moving world of civil litigation, delay can be both a strategy and a symptom of systemic inefficiency. For decades, the Irish courts navigated the issue of dormant legal proceedings with a cautious, plaintiff-friendly approach. However, a landmark decision by the Supreme Court in 2025 has dramatically reshaped the landscape, signalling a definitive end to judicial tolerance for protracted and inexcusable litigation delays. The case of Kirwan v Connors [2025] IESC 21 has not merely adjusted the existing rules; it has instituted a new, stricter regime that prioritises the efficient administration of justice, fundamentally altering the responsibilities of plaintiffs and the strategic options available to defendants.

This watershed ruling introduces a tiered, time-based framework for striking out cases for want of prosecution, moving away from a purely discretionary model to one where delay itself is recognised as a corrosive force. This article delves into the procedural shift heralded by Kirwan, examining the preceding legal test, the mechanics of the new framework, its immediate impact as seen in subsequent High Court judgments, and its place within a broader national movement towards a more expeditious legal system.

The Old Guard: The Primor Test and Its Limitations

To fully appreciate the magnitude of the Kirwan decision, one must first understand the legal framework it replaced. For nearly three decades, the go-to authority on applications to dismiss proceedings for delay was the Supreme Court’s judgment in Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459. The ‘Primor test’ established a three-limbed enquiry that placed a significant onus on the defendant seeking the dismissal.

The court had to consider three sequential questions: first, had there been an inordinate delay in the prosecution of the case? Second, was this delay inexcusable? And third, if the answers to the first two questions were affirmative, where did the balance of justice lie? This final limb required a court to weigh the prejudice caused to the defendant by the delay against the prejudice the plaintiff would suffer if their case was struck out, effectively losing their right to a trial. In practice, this often meant that even where a plaintiff’s delay was both long and without good reason, courts were hesitant to take the ultimate step of dismissal, particularly if the defendant could not demonstrate specific, tangible prejudice, such as the death of a key witness or the loss of crucial documents.

The Primor framework, while sound in principle, was often criticised for affording too much leeway to inactive plaintiffs. The Chief Justice in Kirwan explicitly acknowledged this, noting that the test failed to give sufficient weight to the intrinsic harm that delay causes to the administration of justice. The very existence of stale claims on the court docket creates uncertainty, consumes judicial resources, and can undermine public confidence in the legal system. The old test did not adequately recognise that delay, in and of itself, is a form of prejudice. Furthermore, the argument that dismissing a case for delay infringed a plaintiff’s access to justice was robustly countered. The Supreme Court’s view was clear: a claimant who initiates proceedings but then fails to advance them has already been granted full access to the courts; their failure to utilise that access is a choice, not a denial of rights.

The Kirwan Reformation: A Structured Approach to Delay

The Kirwan judgment dismantles the ambiguity of the Primor test and replaces it with a more structured, time-sensitive framework. The new test recalibrates the focus, making the length of inactivity a primary determinant of the outcome. The court outlined a clear, tiered approach:

Inactivity for less than two years: In these cases, a claim should only be dismissed if it amounts to an abuse of process or if the defendant can demonstrate specific prejudice resulting from the delay.

Inactivity for two or more years: Once inactivity crosses the two-year threshold, a court may dismiss the claim if, in addition to this delay, there is some other factor pointing towards dismissal, such as additional prejudice to the defendant.

Inactivity for four years (in cases reliant on oral evidence): Where a case is dependent on the recollection of witnesses and has been inactive for four years, it should be dismissed unless the plaintiff can provide compelling reasons why it should be allowed to proceed.

Cumulative inactivity of five or more years: This is the most stringent tier. If there has been a total period of inactivity of five years or more, the court is mandated to dismiss the claim unless the plaintiff can demonstrate a “pressing exigency of justice” that demands the case go to trial. This is an exceptionally high bar, reserved for situations involving significant social or economic disadvantage, matters of profound public interest, or serious misconduct by the defendant during the proceedings.

Crucially, the Chief Justice stressed that this framework should not be applied in a purely “mechanical” fashion. Judicial discretion remains, and the unique facts of each case are still paramount. However, the guidelines provide a clear and powerful signal that the judiciary’s patience for lethargic litigation has run out.

The Test in Action: Early Rulings from the High Court

The immediate impact of Kirwan has been evident in a series of High Court decisions where the new principles have been rigorously applied. In cases like Nowak v The Institute of Chartered Accountants in Ireland [2025] IEHC 408, where an eight-and-a-half-year delay was at issue, the court found no “pressing exigency of justice” and promptly dismissed the action. Similarly, in Dennis Guilfoyle Developments Ltd v. Wardrop [2025] IEHC 414, the court had little difficulty in striking out proceedings under the new, stricter criteria.

More nuanced applications have provided further clarity. In Murphy v Aer Lingus Group plc & Anor [2025] IEHC 589, the court dismissed a case commenced over 12 years prior. The judge carefully noted the Supreme Court’s caution against a mechanical application but found that a cumulative delay of over seven years attributable solely to the plaintiff, with no acquiescence from the defendants, was decisive. Absent the exceptional circumstances required to meet the “pressing exigency” test, dismissal was the appropriate course.

The judgment in Doyle v Commissioner of An Garda Síochána & Ors [2025] IEHC 591 proved particularly instructive. The case, initiated in 2003 with a Statement of Claim not delivered until 2018, prompted the court to clarify two critical operational aspects of the Kirwan test. Firstly, the court determined that a two-year period of inactivity need not immediately precede the strike-out application; a significant period of delay at any point in the proceedings could trigger the test. Secondly, and perhaps more importantly, the court held that the four or five-year periods of inactivity do not need to be single, unbroken blocks of time. They can be cumulative, meaning multiple shorter periods of inaction can be aggregated to meet the threshold. This interpretation prevents plaintiffs from resetting the clock with minor procedural steps, ensuring the focus remains on the overall conduct of the litigation.

This point was further explored in Homes of Heritage Limited v Cunningham & Ors [2025] IEHC 724, where the court observed that while a two-year delay might be the minimum basis for an application, the overall history of inactivity is the most significant factor. Finally, in O’Kelly v. McGovern [2025] IEHC 704, the High Court confirmed that in the context of an appeal against a default judgment, the Kirwan principles should be applied with even “greater stringency,” reinforcing the message that diligence is expected at all stages of the legal process.

The Broader Context: A System-Wide Push for Efficiency

The Kirwan decision does not exist in a vacuum. It is a key component of a broader, system-wide effort by both the Irish judiciary and legislature to modernise civil procedure and combat systemic delays. This judicial reform runs parallel to significant legislative action aimed at the same goal.

The Court Proceedings (Delays) Act 2024, passed in April 2024, establishes a statutory right for parties to have their proceedings concluded within a reasonable time. It even provides for potential compensation where undue delays have occurred, creating a powerful incentive for all participants in the justice system to act expeditiously. Furthermore, the General Scheme of the Civil Reform Bill, published in January 2026, proposes even more radical changes. One of its key provisions includes a “deemed discontinuance” rule, whereby an action that has not been set down for trial and has seen no steps taken for a period of just six months would be automatically considered discontinued. Viewed together, these developments paint a clear picture: Ireland is moving decisively towards a legal culture that values efficiency, finality, and the responsible use of court resources.

The Practical Takeaway for Litigants and Practitioners

The long-term consequences of Kirwan are profound. For defendants, particularly those encumbered by historic, dormant litigation, the decision provides a potent new weapon to achieve finality. It presents a clear opportunity to review old files and proactively apply to have stale claims struck out, freeing up resources and eliminating long-standing liabilities. The burden of proof has shifted, and defendants no longer need to demonstrate specific prejudice to the same extent as before; the delay itself is now the primary evidence.

For plaintiffs and their legal advisors, the message is a stark warning. The era of judicial indulgence is over. The onus is now squarely on the plaintiff to prosecute their claim with diligence and purpose. Any significant period of inaction will be viewed critically and could prove fatal to the case. This necessitates a more proactive approach to case management, regular communication with clients, and a clear strategy for moving a case from commencement to conclusion without unnecessary delay. The Supreme Court was unanimous in its view that the Rules of the Superior Courts should be updated to reflect this new reality, and practitioners must remain vigilant for these forthcoming changes.

In conclusion, Kirwan v Connors is more than a procedural update; it is a fundamental recalibration of the balance between the rights of the individual litigant and the effective functioning of the justice system as a whole. By placing a premium on timely prosecution, the Supreme Court has set a new standard for litigation in Ireland, one that promises a more efficient, responsive, and ultimately more just legal landscape for all.