Further Clarification on Delay in Progressing Court Proceedings

In two recent cases the High Court has further clarified the position to set out clearly in the Supreme Court case in 2025 of Kirwan v Connors.

Up to then, in order for a Defendant to succeed in an application to have proceedings dismissed for delay, the Court had to be satisfied that the delay in progressing the case was inordinate, inexcusable and that the balance of justice favoured the dismissal.

In the case of Kirwan v Connors, the Supreme Court moved away from the three-pronged approach previously adopted (known as the Primor Test) and instead focused on whether the delay is inordinate, particularly if it exceeds 4 to 5 years. The Court gave the following guidance:

1. If the delay is for less than 2 years, the case will not be dismissed unless there is clear evidence of prejudice against the defendant.

2. If the delay is of a period of greater than 2 years, then the Court may dismiss the case if there is additional prejudice.

3. If it is between 4 and 5 years, then the case is likely to be dismissed if oral evidence is required.

4. If the delay is greater than 5 years (i.e. no action taken for a period of 5 years), then the case will be dismissed unless there are exceptional circumstances or compelling reasons why the Court will not dismiss.

These exceptional circumstances may relate to:

• The educational, social or economic disadvantage of the Plaintiff

• If the case is in the public interest

• If there has been serious misconduct on the part of the Defendant

Recent High Court applications of these principles

1. Murphy v Aer Lingus
This case involved an incident that occurred 14 years previously.

The Court:

• Confirmed the decision is not a mechanical exercise

• Considered the full circumstances of the case

• Found the Plaintiff responsible for 7 of the 14 years of delay

• Noted the Defendant had followed up repeatedly

The case fell into the “over 5 years” category, meaning it should be dismissed unless justice required otherwise.

The Court held:

• There was no need for the Defendant to prove prejudice

• However, it would be highly prejudicial if the case was not dismissed

 The case was dismissed.

2. Doyle v Garda Commissioner

• Plaintiff dismissed in 1998

• Proceedings issued in 2003

• Took 15 years to file a statement of claim

• Took 25 months to reply to particulars

The Court clarified:

• The 2-year period of inactivity does not need to immediately precede the application

• Periods of delay can be accumulated in blocks, as long as at least one block contains 2 consecutive years

The Court found:

• The delay was inordinate and inexcusable

The case was struck out

For any further information on this or any other litigation matter, please contact Brendan Dillon or Donna Phelan on 01-2960666