Dismissal of Actions for Want of Prosecution – Supreme Court Reformulates Primor Principles

In its judgment of 30 May 2025 in Kirwan v Connors[i] , the Supreme Court has, by majority, reformulated the Primor principles that have applied for over 30 years to applications for the dismissal of claims for want of prosecution.  The judgment provides key guidance for legal advisors in relation to the prospects of successfully bringing an application to dismiss proceedings that have been in abeyance for some time. 

Background 

The underlying case concerned a professional negligence action by a plaintiff against his solicitor, where the plaintiff issued High Court proceedings in May 2013. It appears that no positive steps were taken to advance the proceedings and, after four and a half years, the defendants applied to strike out the proceedings for want of prosecution on the grounds of inordinate and inexcusable delay pursuant to Order 122 Rule 11 of the Rules of the Superior Courts, and/or the inherent jurisdiction of the Court.

In September 2019, applying the test outlined in Primor[ii] , the High Court ordered the proceedings be struck out based on inordinate and inexcusable delay. This decision was upheld by the Court of Appeal. 

However, the plaintiff/appellant was granted leave to appeal on the basis that the Supreme Court. Following a hearing in April 2024 before five judges, the Court concluded that the practical importance of the appeal warranted the reopening of the oral hearing. An extended panel of seven judges reheard the case on 12th November 2024. The Attorney General was invited to participate and did so.

Judgments of the Supreme Court 

The Court unanimously dismissed the plaintiff’s appeal, albeit with some diverging views between the judges about the Primor principles and the reformulated guidelines that should apply.

The Test 

O’Donnell C.J. helpfully summarised the multitude of factors that often fall for consideration in applications to dismiss:

• length of time since the events the subject matter of the proceedings;
• the period or periods of inactivity in the litigation;
• the excuse, if any, offered;
• any question of defendant’s acquiescence in or encouragement of delay;
• whether the case is dependent on oral evidence;
• whether extensive documentary evidence is available; and
• the extent of any prejudice alleged to be suffered by the defendant by reason of delay over and above the general assumption that the passage of time means that evidence becomes degraded, less certain, clear, persuasive and reliable.

O’Donnell CJ held that the passage of time alone could justify the dismissal of a claim, without more, and that greater weight ought to be apportioned in considering whether a claim should be dismissed for want of prosecution. Both he and Hogan J agreed that there was inherent jurisdiction to dismiss proceedings for want of prosecution. In his judgment, O’Donnell CJ applied and restated the test as set out in the judgment of Murray J with which Hogan J agreed. 

O’Donnell CJ and Hogan J submit that two years is a critical milestone in litigation. O’Donnell CJ outlined the test formulated by Murray J as follows: 

1. 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. 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. 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. Finally, where there has been a cumulative period of complete inactivity for more than five years, I agree with Murray J. that 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. 

Murray J noted that there will be cases in which extraordinary factors exist, and these such cases will, effectively, require a defendant to “grin and bear” a plaintiff’s delay with these cases being few and far between. In such cases, Murray J acknowledged that the prejudice to the defendant will lie very much at the weaker end of the scale. He further stressed that the court should not be concerned with the merits of the case but only with whether the plaintiff is prosecuting it. 

In his judgment, Hogan J examined how the test should operate. Based on his interpretation of the test, it would go from being a three-prong test to a two-part test. He held that that any period of inactivity by a litigant beyond two years would be deemed to be inordinate and would be regarded as prima facie inexcusable. The court would then treat a two-year delay (or inactivity) as warranting the dismissal unless there were good reasons which justified the court staying its hand. He went on to add that the litigant who contends that the delay was excusable carries this particular burden of proof of showing that the action should not be dismissed after a two-year period of inactivity without any step in the proceedings. 

Collins J agreed the claim should be dismissed on the grounds of inordinate and inexcusable delay. However, he reached the conclusion by applying the test as set out in Primor and subsequent authorities applying it. He further set out that inactivity on the part of the defendant where plaintiff delay was already a factor would be a relevant consideration in any application to dismiss.

Conclusion 

This is quite a seismic change in approach. Quite apart from the reduced emphasis on the need for specific prejudice, the express identification and guidance regarding the relevance of specific periods of delay is most welcome for those tasked with advising clients in relation to the prospects of successfully bringing an application to dismiss proceedings.

[i] Kirwan v Connors [2025] IESC 21

[ii] Primor v Stokes Kennedy Crowley [1996] 2 IR 459