The Supreme Court’s recent ruling in Kirwan v Connors & Ors [2025] IESC 21 brings much-needed clarity to how Irish courts handle inordinate and inexcusable delay in litigation. This landmark decision is especially significant for insurers, defendant solicitors, and claims handlers combating stale or inactive claims.
Background: A Decade of Delay
The underlying case in questionconcerned a professional negligence action by Mr Kirwan against his solicitor. Proceedings were initiated by Mr. Kirwan in 2013 however he did not progress his case for five years. The Defendant brought an application to court in 2018 to have Mr Kirwan’s case dismissed for delay in prosecuting his claim pursuant to Order 122 Rule 11 of the Rules of the Superior Courts, and/or the inherent jurisdiction of the Court
The High Court agreed and dismissed Mr Kirwan’s case for inordinate and inexcusable delay. using the principles in Primor. This decision was upheld on appeal to the Court of Appeal.
On final appeal, the Supreme Court affirmed the dismissal, but used the opportunity to clarify the applicable principles and propose a more structured approach.
The Primor Principles: A Quick Recap
In the case of Primor Plc -v- Stokes Kennedy Crowley [1996] 2 IR 459 it was decided that the following three limbs must be taken into consideration in the context of delay:
- Is the litigation delay inordinate?
- Is the delay inexcusable?
- Does the balance of justice favour dismissal?
A balance was to be struck by the Courts in ensuring the Constitutional requirement that justice was administered effectively and expeditiously, and that procedural fairness was adhered to.
Kirwan Principles Now Applicable
(Per O’Donnell C.J. at para. 26 – Kirwan v Connors & Ors[2024] IESC):
1. Inactivity < 2 Years
Until the point is reached where there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under the O’Domhnaill v Merrick jurisdiction.
2. Inactivity ≥ 2 Years
After two years of total inactivity, a claim may be dismissed for want of prosecution. It is likely that a claim will only be dismissed at this point if in addition to the period of inactivity a plaintiff can point to some additional prejudice or other factor pointing towards dismissal. If a court does not dismiss the claim, it would be entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal
3. Inactivity ≥ 4 Years
If there has been four years total inactivity then the claim should be dismissed if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably accompanies a long effluxion of time, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial. Conversely, if there are factors such as specific prejudice to the defendant that will strengthen the case for dismissal, but it should be emphasised that it is not necessary to point to any such factor: passage of this amount of time is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.
4. Inactivity ≥ 5 Years
Finally, where there has been a cumulative period of complete inactivity for more than five years…the court should have a generous power to dismiss cases, and the court should feel free to dismiss the proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational social or economic disadvantage, or otherwise in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated to conclusion or where there has been serious misconduct by the defendant in the course of the proceedings.
A Realistic View of Litigation Delay
Chief Justice O’Donnell reflected on the realities of litigation, cautioning against the idealistic view that every case should proceed to trial unless manifestly unfair.
He noted that:
“Many more claims are commenced than ever resolved… such claims are commenced for a range of reasons and not merely because a plaintiff considers that they have been injured…”
He acknowledged that litigation decisions are driven by cost, witness availability, and procedural strategy. Importantly, requiring a defendant to defend a case after years of inaction—even if theoretically still ‘fair’—may be fundamentally unjust.
This pragmatic view supports insurers and defence counsel seeking early dismissal in long-dormant files. The Court expressly recognised that delay alone can constitute prejudice, even where documentation remains intact.
Training for Insurers: Stay Ahead of the Curve
This decision provides significant procedural clarity for addressing stale claims and litigation delay. Defendant representatives dealing with dormant or stale files should apply the established thresholds to advise on strike-out prospects with their instructing insurers.
The Kirwan v Connors case does however stipulate that the test is not rigid but remains a matter of judicial discretion. It acknowledges that judges may have differing opinions in borderline cases, which is an inherent and necessary aspect of the legal system. The goal of the jurisprudence is not to dictate outcomes in marginal cases but to provide enough guidance to resolve most cases without lengthy hearings and appeals. This refinement of the Primor test aims to expedite decisions and focus on key issues in more balanced claims.
“In any other field of activity, two years is a very long time to do nothing. The administration of justice should not be different.”
Lacey Solicitors is an Irish Insurance law firm and we regularly deliver training sessions to insurers on the evolving legal and procedural landscape of insurance litigation on the entire island of Ireland.
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