In a recent Supreme Court decision in the case of Kirwin v. Connors and others, the Supreme Court set out a new simplified approach to applications to dismiss cases for want of prosecution, i.e., delay.
The previous test was in a case known as the Primor test (after one of the parties in the case), where the Supreme Court had held that the decision as to whether to dismiss the case for want of prosecution depended on the examination of the following factors:
- Has the delay been inordinate?
- If so, was the delay inexcusable?
- If so, does the balance of convenience favour dismissal?
This, of course, left a huge discretion to the Court in how it interpreted the circumstances of a particular case.
In the recent Kirwin v. Connors decision, the Court set out a new approach, which is as follows:
- Where there has been less than two years of inactivity in any particular case, the case should only be dismissed if there is an abuse of process, or a fair trial would not be possible.
- If there has been two years of inactivity, a case may be dismissed if there is some prejudice or other factor which justifies the dismissal of the action.
- After four years of inactivity, the case should be dismissed if it is dependent on oral evidence, unless the Plaintiff shows compelling reasons why the case should not be dismissed. It is important to note that in this particular test, prejudice to the Defendant does not have to be proved but will be of assistance in obtaining a dismissal.
- After five years of inactivity in the case, the Court should feel free to dismiss unless there are exceptional circumstances. Exceptional circumstances would include some level of educational disadvantage on the part of the Plaintiff or where there has been serious misconduct by the Defendant in the conduct of the proceedings.
This new test should make it much clearer as to whether a Defendant should succeed in having a case dismissed for want of prosecution.
For any further information on any litigation matter, please don’t hesitate to contact Brendan Dillon or Donna Phelan on 01 296 0666.
