High Court strikes out plaintiff's negligence claim against ICAI for excessive delay and want of prosecution.

[2025] IEHC 408

THE HIGH COURT

Record No. 2015/1146P

BETWEEN:

PETER NOWAK

PLAINTIFF

AND

THE INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND

DEFENDANT

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 16th day of July, 2025

INTRODUCTION

1. This is the judgment of the court in respect of an application brought by the defendant pursuant to Order 122, rule 11 of the Rules of the Superior Courts (RSC) and/or the inherent jurisdiction of the court seeking to have the plaintiff’s action struck out for want of prosecution. The motion was heard on the 10 July 2025, and the defendant was represented by junior counsel and the plaintiff represented himself. At the conclusion of the hearing, the court indicated that it was persuaded that the defendant’s motion should succeed, particularly in light of the recent

decision of the Supreme Court in Kirwan v. Connors & Ors. [2025] IESC 21, but that in deference to the arguments made by the parties it would provide written reasons at a later date.

THE PROCEEDINGS AND MOTIONS

2. The plaintiff commenced the proceedings by issuing a plenary summons on the 11 February 2015. In the general endorsement of claim, the plaintiff seeks what appear to be damages for negligence, breach of duty, breach of good faith, bad faith and breach of an undertaking to preserve original documentation. In addition, various declarations are sought to the effect that decisions made by an appeals panel to uphold a mark awarded in an examination in Autumn of 2009 was irrational, declarations concerning compliance by the defendant with the provisions of the Data Protection Acts 1988 and 2003, and a declaration that the registration by the defendant of the termination of the plaintiff’s training contract was unlawful and of no legal effect. The detail of the claim is set out in more detail in an amended statement of claim dated the 15 June 2015. That document is reasonably lengthy, but the claims can be summarised as follows.

3. The plaintiff signed a training contract on the 1 November 2006 with PWC at its Dublin office. The plaintiff progressed through his professional exams. Those exams are administered by the defendant, and, if passed, can lead to a person qualifying as a chartered accountant. The plaintiff pleaded that he failed the Strategic Finance and Management Accounting (SFMA) examination on four occasions. When he was unsuccessful in the SFMA exam for the third time in the Summer 2009 examination session his employment contract with PWC was terminated from the 21 August 2009. He then repeated the SFMA exam for the fourth time in October 2009, but again failed that exam. That commenced a lengthy saga of multiple cases in which the plaintiff sued the defendant in these proceedings, but also over time commenced separate proceedings against, inter alia, the Data Protection Commissioner and PWC.

4. The gravamen of the case in the current proceedings is that the plaintiff was concerned about the correctness of the marks awarded to him and made data access requests which he alleges were not complied with properly. In addition, the plaintiff claims that the marks awarded in the original marking were fraudulently altered without any authorisation, that the defendant forged documents purportedly showing the examiner’s and moderator’s re-marks of his Autumn exam results which “were then wilfully and knowingly furnished in response to the data access request”. In addition to the allegations of forgery, the plaintiff claims that the defendant breached the Examinations 2009 Regulations and by-laws in a number of respects, and he pleads that a series of actions were taken by identified persons within the defendant that amount to bad faith and negligence. There also are claims that the defendant breached duties owed to him under the Data Protection Acts and a duty of care that was said to be owed by the plaintiff. As part of his claim, the plaintiff seeks both damages as a result of the losses he has suffered and punitive damages, and at para. 46.8 of his statement of claim he quantifies the damages sought in the sum of €50 million.

5. The defendant filed a full defence on the 6 November 2015 in which the plaintiff’s claims are characterised in many respects as frivolous, vexatious and bound to fail, and also where, without prejudice to the generality of the defence, the defendant claims that the allegations in relation to alleged breaches of the Data Protection Acts already had been addressed by the Data Protection Commissioners, the Circuit Court on appeal, the High Court on appeal and the Court of Appeal.

6. The history of the case is set out in an affidavit of Ronan O’Loughlin Executive Head of Education Policy of the defendants, which was sworn on the 14 October 2024. In his affidavit, Mr. O’Loughlin highlights that among the claims made by the plaintiff there are allegations of forgery, dishonesty and deceit, and that it is a case in which oral evidence will be required if the matter is to proceed to trial. The following chronology is set out in Mr. O’Loughlin’s affidavit. While Mr. Nowak disputes a number of elements in the defendant’s motion, the chronology appears largely uncontested and accurate:

• 11 February 2015 – the plaintiff issues his plenary summons.

• 29 April 2015 – the defendant entered an appearance.

• 15 June 2015 – the plaintiff served a statement of claim.

• 6 November 2015 – the defendant delivers its defence.

• 13 November 2015 – the plaintiff sought voluntary discovery.

• 2 December 2015 – the defendant replied to the request.

• 22 December 2015 – the defendant requested the plaintiff make voluntary discovery.

7. The defendant asserts that the plaintiff took no steps in the proceedings following the service of his request from voluntary discovery on the 15 November 2015 until he issued a motion on the 3 May 2024.

8. In his motion from May 2024, the plaintiff sought an order pursuant to O. 25 RSC seeking a preliminary trial on the following points of law:

(a) Whether the Institute’s Examinations Regulations governing the conduct of examinations prior to the year of 2012, in particular, conducted in 2007, 2008, 2009 were lawful, effective and of legal effect.

(b) Whether the Training Contract 2006 was lawful and of legal effect.

9. The plaintiff also sought an order pursuant to O. 28, r. 1 RSC seeking to amend the general endorsement of claim.

10. It appears from the grounding affidavit in that motion that the plaintiff contends that because, as he alleges, the defendant’s 2009 examination regulations were not approved by the Irish Auditing and Accounting Supervisory Authority, it follows that the regulations were not lawful and effective. While the application for an order pursuant to O. 25 RSC did not need to be addressed as a result of the outcome of this application, it can be noted in passing that nowhere in the statement of claim in these proceedings is there an allegation to the effect that the regulations under which the examinations were organised was unlawful. Instead, the claims related to the manner in which the marking of examinations was conducted.

11. The defendant makes the point that the motion issued by the plaintiff in May 2024 was irregular because the plaintiff had not served a notice of intention to proceed pursuant to the provisions of O. 122, r. 11 RSC.

12. In addition to highlighting and focusing on the delay in the case, Mr. O’Loughlin makes two further points. First, he argues that the defendant disputes the plaintiff’s contention – made at an initial hearing in relation to his motion – that there was an agreement reached between the parties to put the proceedings on hold pending the outcome of certain other proceedings brought by the plaintiff against the Data Protection Commissioner and separate proceedings against PWC. Second, Mr. O’Loughlin highlights that in addition to the significant lapse of fourteen years since the plaintiff sat the examination which is the subject of the complaint in the within proceedings, two witnesses are unavailable. A former secretary of the defendant retired in 2015; and an employee of the defendant who dealt with the plaintiff’s data protection requests left the employment of the defendant in 2020, and the defendant does not have any contact details that person save for an email address to which no response has been received.

13. In response to the application, the plaintiff asserts that in the first instance the delay in progressing the proceedings was excusable because of the fact that he was pursuing a number of other cases which appear to have involved multiple appeals. Secondly, he asserted that while no formal notice of intention to proceed was served by him on the defendant, the notice of motion in which he sought the trial of a preliminary issue ought to be treated as equivalent to a notice of intention to proceed. Third, the plaintiff asserted the defendant was aware at all times that the plaintiff wished to progress these proceedings and had in fact agreed or acquiesced in their postponement pending the resolution of other outstanding cases. Finally, he appeared to make an argument that, regardless of any issue of agreement or acquiescence, it was in the interests of justice that he be permitted to finish out his other litigation before addressing this case.

RELEVANT PRINCIPLES

14. The proper approach to an application such as the within has recently been clarified comprehensively by the Supreme Court in Kirwan v. Connors & Ors. [2025] IESC 21. While a number of judgments were delivered by the court in that case, the judgment of the Chief Justice was agreed with by Dunne, Charleton, O’Malley, and Hogan JJ.; and the judgment of Hogan J. was agreed with by the Chief Justice, Dunne, Charleton and O’Malley JJ. An additional judgment was delivered by Murray J., who disagreed with the majority in respect of the source of the power exercised when an application is brought to dismiss an action for want of prosecution but which appears to be largely in agreement in relation to the manner in which such application should be approached by and disposed of by the court. Collins J. dissented in respect of the manner in which the majority proposed to approach and reformulate the test in Primor Plc v. Stokes Kennedy Crowley [1996] IR 459.

15. The approach adopted by the majority in Kirwan involves a significant readjustment of the approach to be adopted to applications to strike out cases for want of prosecution and turns the focus of analysis to the lapse of time involved in a case. The starting point of analysis is O. 122, r. 11 RSC which permits a defendant to bring an application to strike out a proceeding where no step in the proceedings have been taken for two years. While the majority endorsed the view that the court retained an inherent jurisdiction to strike out cases for want of prosecution, that jurisdiction interacted with and was informed by the RSC and the baseline of

2 years of inactivity as triggering an application to strike out.

16. In his judgment which seeks to gather together the elements of agreement and disagreement in the various judgments delivered by the court, O’Donnell C.J. noted at para.

26:-

“In my view, the law should recognise the fact that passage of time is important in and of itself, and can justify dismissal of a claim without more. Greater weight should be given to the factor of the passage of time. This will also have the merit of simplifying the test to be applied. I agree with Hogan J. that two years of inactivity is a critical milestone. I would apply the tests set out in the judgment of Murray J. at paragraphs 53 and 54 and with which I understand Hogan J.

agrees. That means that:-

…

(iv) Finally, where there has been a cumulative period of complete inactivity for more that 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 proceedings unless satisfied there is a pressing exigency of justice that requires that the case be permitted to go to trial. This will 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. I agree with what Murray J. says about such cases at paragraph 54 of his judgment.”

17. In this application, if one treats the service by the plaintiff of a request for voluntary discovery on the 15 December 2015 as a proceeding, it is clear that no further step was taken by the plaintiff until he purported to issue his motion in May 2024 seeking the trial of issues of law, a period of approximately eight and a half years. That period brings the application squarely within the category of case identified by O’Donnell C.J. at para. 26(iv). In those circumstances, it is clear from the recent judgments of the Supreme Court that this Court should proceed 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.”

18. The question then is whether the defendant has identified any reason why the court should not strike out the proceedings.

THE ISSUES RAISED BY THE DEFENDANT

19. As noted above, the plaintiff asserts that not only was the defendant fully aware that the plaintiff intended to progress these proceedings but that the defendant agreed to the delay. It is important to note that this is framed in two very different ways by the plaintiff. First, in his replying affidavit which was sworn on the 16 October 2024, the plaintiff states that the defendant agreed “by way of implied agreement” to put the proceedings on hold pending the determination of other proceedings between the plaintiff and PWC and/or the Data Protection Commissioner. Second, in addition to the claims about agreement, there is also a suggestion that, in a different sense and at a different time, the defendant acquiesced in the postponement of the proceedings.

20. The argument in relation to an implied agreement was set out in an affidavit sworn by the plaintiff on the 8 October 2024 in the context of his motion seeking a preliminary trial. He states that the origin of the agreement was a letter dated the 11 June 2015, when the then solicitors for the defendant wrote suggesting that the proceedings should not be advanced pending the determination of other cases brought by the plaintiff. The defendant addressed that issue in an affidavit sworn by their current solicitor, Liam Collins, on the 11 October 2024, which exhibited the broader correspondence relating to the 11 June 2015 proposal.

21. The correspondence exhibited by Mr. Collins makes clear that it was simply wrong for the plaintiff to claim that the letter of the 11 June 2015 formed the basis of any agreement. As noted by Mr. Collins and made clear by the exhibits to his affidavit, following receipt of the letter from the former solicitors for the defendant on the 11 June, the plaintiff replied by email on the 12 June 2015 stating “I do not agree. Please deliver your client’s statement of defence as appropriate”. Thereafter, far from agreeing to any postponement or delay of the proceedings, the plaintiff pressed on with his attempts to prosecute the case, sending warning letters in relation to the delivery of a defence, issuing a motion for judgment in default of defence – which appears to have been resolved on a consent basis as the return date for the motion postdated the actual delivery of the defence – and then, when a defence was delivered on the 6 November 2015, issuing a request for voluntary discovery on the 13 November 2015.

22. Accordingly, the court has no hesitation in finding that the plaintiff was incorrect to state in his affidavit evidence that the letter from the defendant’s former solicitors dated the 11 June 2015 formed the basis of any agreement of a type described by him.

23. The second element relied upon by the defendant was the assertion that there had been some form of acquiescence on the part of the defendant in the postponement of the proceedings. In that regard it should be noted that the plaintiff wrote to the current solicitors for the defendant by letter dated 23 December 2016. In that letter he stated the following:- “Please note that the trial of the above action is delayed awaiting the outcome of my other legal proceedings entitled Nowak v PWC, High Court Record No. 2016/226CA. Copy of same is attached for ease of reference.”

24. Notably there was no reply to that letter. However, it can also be noted that the proceedings referred to by the plaintiff in fact were struck out by the High Court two months later, on the 24 February 2017. While the plaintiff took issue with the manner in which his proceedings were struck out and has commenced further proceedings arising out of that state of affairs, the reality is that the proceedings referred to in his letter from December 2016 in fact were concluded by February 2017.

25. The question of acquiescence is considered at various points in the judgments of the Supreme Court in Kirwan, and the court distinguishes between two scenarios. First, general inactivity on the part of a defendant does not prevent a defendant from seeking to have a claim struck out on the grounds of delay. As noted by O’Donnell C.J. at para. 14 of his judgment, the parties “are not co-adventurers in litigation with the same interest in bringing it to a

conclusion”. Similar sentiments are expressed in the judgments of Hogan and Murray JJ. However, all three judgments address the situation where other than through mere inactivity, a defendant acquiesces or encourages the plaintiff from prosecuting their claim. At para. 15 of his judgment the Chief Justice states:- “15. There may be cases in which there may be something which goes beyond silence and/or inactivity and reaches the level of acquiescence on the part of a defendant in the plaintiff’s delay, or indeed positive encouragement to the plaintiff to reframe from prosecuting a claim. If so, that would certainly be a relevant factor. However, unless the defendant’s conduct reaches that level, I do not think it is a valid answer to a complaint that a plaintiff has done nothing to prosecute a claim for a period of two years or more, to say that the defendant did not do so either.”

26. Likewise at para. 190 of his judgment, Hogan J. noted that, unlike a situation of mere inactivity, “different considerations naturally apply where the defendants have been guilty of acquiescence or have actively lulled the plaintiff into a false sense of security.”

27. In relation to defendant inactivity Murray J. noted at para. 49:- “But the suggestion that a defendant who has fully complied with those obligations is precluded from seeking dismissal because they did not move to dismiss sooner, or did not warn the plaintiff of their intention so to do, or did not seek case management or otherwise galvanise the plaintiff to move their own case to trial, is without foundation.”

28. In that regard, Murray J. highlighted that the structure put in place by O. 122, r. 11 RSC is one that leans “heavily against a general judicially imposed obligation on defendants to proactively prod a plaintiff into moving their case along”; he also noted that there is no mutuality, in the sense that there is no obligation on a defendant to intervene by taking steps requiring the plaintiff to act.

29. In this application, the court is satisfied that while it may have been preferable for the defendant to respond to the plaintiff’s letter of the 23 December 2016 by indicating a view one way or another as to his assertion that the proceedings were delayed pending the determination of the action against PWC, it seems to me that the fact that the action against PWC was struck out by the High Court in February 2017 (a matter that would have been apparent on a public reading of the court’s website), meant that there was no obligation on the defendant to enquire of the plaintiff whether, following the striking out of those proceedings in 2017, he intended to progress the case or whether it should be postponed pending the resolution of other proceedings brought by him.

30. In those circumstances, it cannot be said that the defendant acquiesced in the plaintiff’s failure to progress the case in the sense that this precluded an application to strike out for want of prosecution, and its behaviour is better characterised as simple inactivity. Certainly, there is nothing in the evidence to suggest that the defendants could be accused of taking any step to encourage the plaintiff to refrain from prosecuting his case against them.

31. A final point to be made is the question of whether the fact that the plaintiff issued a motion seeking the trial of preliminary points of law prior to the defendant issuing its motion to strike out the proceedings for delay has the effect of meaning that for the purposes of O. 122, r. 11 RSC the plaintiff had in fact taken a proceeding prior to the application. Order 122, r. 11 RSC provides as follows:- “In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed. In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule.”

32. In the first instance, I consider the plaintiff is quite incorrect in his assertion that the motion seeking the trial of a preliminary issue should be treated by the court as a notice of intention to proceed. The two matters are entirely different. The purpose of a notice of intention to proceed is to ensure that where there has been no substantive movement in a case for one year, the party that proposes to take a step is required to let the other party know of that fact and the notice is to be one month’s notice.

33. Second, the court cannot overlook the failure to serve a notice of intention to proceed. As noted by Murray J. in his judgment in Kirwan, at para. 22, O. 122, r. 11 RSC is “a power with its own internal balance and dynamic”. A two-year period must have elapsed since either party took a substantive step in the case before the application to have proceedings dismissed for want of prosecution, and a plaintiff can avoid dismissal by taking such a step. As noted by Murray J. “a plaintiff can avoid dismissal by taking such a step, while a defendant can make a choice between avoiding the prejudicial effect of the passage of time by themselves moving the action along, or they can wait for two years – or longer – to pass, and then apply to dismiss, or indeed apply to dismiss only when the plaintiff serves a notice of intention to proceed.”

[emphasis added]

34. In that sense, a notice of intention to proceed in a case where two years has passed since the last proceeding provides a defendant with fair warning and, if necessary, a prompt that if an application to dismiss for want of prosecution is to be brought it should be brought at that point. By not serving a notice of intention to proceed prior to the issue of his motion seeking the trial of a preliminary issue, the plaintiff deprived the defendant of that procedural protective measure set out in O. 122 RSC.

35. The third substantive point made by the plaintiff is that, regardless of the attitude of the defendant, there was an unfairness in this application where he was engaged in substantial litigation against other parties arising, in a very general sense, from the same originating issues, and therefore he should be entitled unilaterally to pause these proceedings. I consider that this argument manifestly is unfounded. The plaintiff, and not the defendant, has chosen to pursue the various pieces of litigation that he initiated. The obligation rests on the plaintiff to litigate in accordance with the rules. Absent agreement or a court order, it is not open to the plaintiff to force a defendant to wait until the plaintiff is ready to pursue a particular case. This is all the more so where the litigation in this case involved allegations of forgery and what, in effect, is alleged to be serious misfeasance.

36. Finally, although this was not fully argued and may require more detailed consideration, in circumstances where there is some potential for debate about what constitutes “a proceeding” for the purposes of O. 122, r. 11 RSC, it can be noted that, under the terms of the rule itself, a motion on which no order has been made shall not be deemed a proceeding within the rule. Hence, there is in any event a strong argument that the issue of the plaintiff’s motion should not be treated as a proceeding of the type that would prevent the two years or upwards period from continuing to run for the purposes of O. 122, r. 11 RSC.

CONCLUSION

37. In all the circumstances therefore the court is satisfied that the plaintiff in this case has failed to prosecute his case in a timely manner. The delay in this case is such that it falls within the category of delay that permits the court to strike out save if there is some particular exigency that in the interests of justice would permit the case to proceed to trial. I am satisfied that there is no such exigency. I am also satisfied that there is no basis for the argument that, by sending their letter on the 11 June 2015, the defendant entered into an implied agreement to postpone the prosecution of the case. The plaintiff expressly rejected that proposal, and confirmed his stance by his subsequent actions in seeking to progress the litigation. Similarly, the defendant did not acquiesce in the delay by failing to take steps after the plaintiff’s letter in December 2016. That letter framed a postponement by reference to other proceedings, which themselves were concluded in February 2017. The defendant in those circumstances was not under an obligation to clarify the position with the plaintiff or to enquire if the postponement was proposed to continue on the basis that the plaintiff wished to pursue other litigation, not referred to in the December 2016 letter.

38. Accordingly, the court will make an order striking out the plaintiff’s action. It follows that the plaintiff’s motion seeking a preliminary trial will be struck out as part of the general order. As this judgment is being delivered electronically my provisional view is that the defendant is entitled to the costs of the action and the motions, to be adjudicated in default of agreement. I will list the matter for final argument before me at 10.30am on Tuesday, the 23 September 2025.