High Court dismisses construction claim against defendant for want of prosecution due to five-year inactivity.

THE HIGH COURT

[2025] IEHC 414

[2014/1592S]

BETWEEN

DENNIS GUILFOYLE DEVELOPMENTS LTD

PLAINTIFF

AND

ERIC WARDROP

DEFENDANT

Judgment of Mr Justice Barr delivered electronically on the 10th day of July 2025.

Introduction

1. These proceedings commenced in 2014. They concern a claim for €287,502.65, plus interest, in respect of unpaid invoices for construction works, based on invoices raised in 2008 and 2010.

2. The defendant filed his defence and counterclaim on 30 March 2017. The plaintiff delivered its reply and defence to counterclaim on 16 May 2018.

3. In this application the defendant seeks an order pursuant to Order 122 of the Rules of the Superior Courts, or in the alternative, pursuant to the inherent jurisdiction of the court, striking out the plaintiff’s action against him on grounds of delay and want of prosecution.

Background.

4. In these proceedings the plaintiff claims that on or about 29 June 2006, it entered into a written agreement with the defendant to carry out construction works on lands owned by the defendant in County Tipperary. In particular, the agreement related to refurbishment of an existing dwelling on the lands and the construction of nine further dwellings.

5. The plaintiff alleges that he carried out the construction works as required under the contract. His claim in the summary summons is in respect of the sum of €287,502.65 alleged to be due and owing on foot of two invoices presented on 18 August 2008 and 22 April 2010. The plaintiff also claims interest on that sum pursuant to the terms of the contract.

6. While a more detailed chronology of the proceedings is set out in the next section, the progress of the proceedings can be summarised as follows: the initial summary summons was issued by the plaintiff on 19 June 2014. In January 2016, an order was made remitting the action to plenary hearing. A statement of claim was delivered on 17 February 2016. Following delivery of a notice for particulars and replies thereto, the defendant filed his defence and counterclaim on 30 March 2017. In it, the defendant asserted that he was not liable for any sums alleged to be due and owing because the agreement to carry out the construction works had been concluded between the plaintiff and the defendant’s company, Wardrop Technical Services Ltd. The defendant also raised the preliminary objection that the plaintiff had been guilty of laches and/or inordinate and inexcusable delay in commencing and prosecuting the proceedings herein, as a result whereof the defendant had been prejudiced to such extent that the proceedings should be dismissed.

7. The defence also denied that the defendant was indebted to the plaintiff company in the sum alleged or at all.

8. There was also a counterclaim on behalf of the defendant, in which he claimed that the plaintiff had acted in breach of the terms of the construction contract; in particular, by failing to deliver the houses within the time permitted under the terms of the contract and for failure to construct the houses in a proper and workmanlike manner. It was alleged that as a result of the negligence and breach of contract on the part of the plaintiff, the defendant and/or his company had suffered loss and damage. This was subsequently quantified in the amount of €3 million.

9. On 16 May 2018, a reply and defence to counterclaim was delivered on behalf of the plaintiff. In it, the plaintiff took issue with all the matters pleaded by the defendant in his defence. It also put in a full defence to the counterclaim. It was denied that there had been any delay in the construction of the houses. It further denied that the houses had been constructed in a negligent manner, or were sub-standard in the manner alleged or at all. It was denied that the defendant had suffered the alleged or any loss or damage.

10. Thus, in terms of the plaintiff’s action against the defendant, the central issues would appear to be as follows: (a) whether the contract was concluded with the defendant in his personal capacity or as representative of the company; (b) whether the amount claimed on foot of the two invoices is properly due and owing by the defendant to the plaintiff; and (c) what interest, if any, is due on any sum that may be found due and owing from the defendant to the plaintiff.

Chronology of the Proceedings.

11. Central to the issue that arises for determination on this application is whether there has been delay on the part of the plaintiff in prosecuting the proceedings herein. Set out below is a chronological table showing the steps that were taken by the plaintiff during the course of the proceedings.

19 June 2014 Summary summons issued.

21 January 2015 Summons served.

29 January 2015 Appearance entered on behalf of the defendant.

Motion to enter summary judgment, returnable for 28

16 July 2015

July 2015. Adjourned to 20 October 2015.

Motion adjourned to 17 November 2015 due to further

20 October 2015

affidavit from defence on the day of the motion.

17 November 2015 Motion adjourned to 18 January 2016.

18 January 2016 Action remitted to plenary hearing.

17 February 2016 Statement of claim served.

9 March 2016 Notice for particulars raised by the defendant.

7 June 2016 Replies to particulars raised by the defendant.

26 October 2016 Warning letter issued regarding filing of defence.

Motion for judgment in default issued – returnable to 18

6 December 2016

January 2017.

Consent order giving the defendant six weeks to file a

18 January 2017

defence.

30 March 2017 Defence and counterclaim delivered.

18 May 2017 Consultation with plaintiff.

18 October 2017 Brief sent to senior counsel.

28 November 2017 Preliminary advices received from senior counsel.

Meeting with legal advisors to review preliminary

December 2017

advice.

Brief junior counsel. Reply to defence to counterclaim,

2 February 2018

notice for particulars and discovery.

21 February 2018 Settled pleadings received from senior counsel.

Following up with senior counsel regarding issues

11 April 2018

raised in the pleadings.

Finalised pleadings received from senior counsel,

7 May 2018

including a notice for particulars.

16 May 2018 Reply to defence to counterclaim served on defendant.

Warning letter to defendant regarding replies to

15 June 2018

particulars outstanding.

25 June 2018 Holding letter received from defendant’s solicitor.

27 August 2018 Second warning letter issued to defendant.

Motion issued to compel replies to particulars,

12 October 2018

returnable to 10 December 2018.

Call from defendant’s solicitor’s office seeking an

7 December 2018

adjournment due to illness of the defendant’s solicitor.

10 December 2018 Motion adjourned to 11 March 2019.

9 March 2019 Replies to particulars furnished.

Order of the court, motion struck out with costs

11 March 2019

reserved on consent.

Consultation with plaintiff to seek documentation and

6 June 2019

updated instructions.

7 November 2019 Brief to senior counsel for advice on proofs.

Advice from senior counsel that expert reports should

26 February 2020

be obtained from an architect and an engineer. March 2020 COVID-19 pandemic. Lockdown imposed.

23 February 2021 Meeting to review senior counsel’s queries.

Letter to defendant, identifying plaintiff’s expert

25 February 2021 witnesses and suggestion that experts should meet to narrow issues.

1 March 2021 Brief to senior counsel.

8 March 2021 Updated advice received from senior counsel.

2 November 2021 Letter to expert witnesses seeking report.

1 December 2021 Meeting with the plaintiff’s architect.

31 March 2022 Meeting with the plaintiff’s financial expert.

12 April 2022 Meeting with the plaintiff.

28 July 2022 Updated brief to senior counsel. December 2022 Detailed expert reports received.

12 April 2023 Notice of intention to proceed.

2 June 2023 Defendant issues notice of change of solicitor.

11 March 2024 Notice for particulars raised by the plaintiff.

Defendant issues motion to dismiss the action on

26 June 2024

grounds of delay.

The Evidence.

12. The evidence on this application was contained in four affidavits, being the grounding affidavit sworn by the defendant on 28 June 2024, a replying affidavit sworn by Mr Dennis Guilfoyle, the principal in the plaintiff company, sworn on 25 October 2024, an affidavit sworn by the plaintiff’s solicitor on 24 October 2024 and a responding affidavit sworn by the defendant on 26 November 2024. It will suffice to set out a very brief account of the averments contained in these affidavits.

13. In his grounding affidavit, the defendant stated that there was a considerable period of delay between presentation of the invoices in 2008 and 2010, and the institution of the proceedings in 2014. He asserted that there was a delay of six years and seven months in prosecuting the proceedings thereafter. He stated that in these circumstances he had formed the reasonable belief that the plaintiff had abandoned its claim against him.

14. The defendant went on to outline the prejudice that he alleged that he had suffered as a result of the delay on the part of the plaintiff in prosecuting the proceedings. He stated that he had been 66 years of age when the development had been completed in 2009. He had turned

81 years of age on 30 June 2024; meaning that he is 82 years of age at present. The defendant went on to state that he had suffered very considerable loss as a result of his disastrous investments in property, including in the development which is the subject matter of the proceedings herein. He stated that in the interim period he had taken actions to try and resolve his business and financial affairs. He had settled partnership accounts and had entered into various business arrangements and had carried out estate planning for the benefit of his children and grandchildren.

15. The defendant stated that in addressing “other financial and business arrangements”, the plaintiff’s solicitors had been acting for him in relation to those matters. He stated that he was not aware that that firm was acting for the plaintiff at that time. He stated that he would not have authorised that firm of solicitors to act in those matters on his behalf, had he not been given the impression as a result of the delay on the part of the plaintiff that the within proceedings had been abandoned. He pointed out that he did not question the integrity or professionalism of the firm of solicitors acting for the plaintiff company. However, he had a concern that he may be prejudiced in that regard by the delay which led to a situation where that firm had acted in relation to his own personal interests and are acting for the plaintiff in the present proceedings.

16. The defendant went on to state that in the proceedings the plaintiff was attempting to rely on oral agreements as part of its claim that the building contract had been entered into with the defendant and that he was personally liable for the debts. He stated that in these circumstances this issue which will arise for determination at the trial of the action will turn on oral evidence. He stated that he believed that due to the general passing of time and the dulling of memories, he will suffer prejudice in dealing with the issues that will arise at the trial of the action.

17. He pointed out that the plaintiff was seeking to rely on events that occurred in 2006. He stated that while he was confident in his memory, he was no longer a young man; he had suffered from cancer in recent years and he continued to suffer from type II diabetes. He stated that his health may deteriorate further in the future and this may affect his ability to give full and proper evidence at the trial of the action. He stated that in these circumstances, he also had a concern about the fairness to the deponents who had already sworn affidavits on his behalf. He stated that it would be unfair to place a significant burden on them to give oral evidence at this remove. He stated that the plaintiff had been guilty of inordinate and in excusable delay and he believed that he had suffered significant prejudice as a result thereof.

18. The remainder of the defendant’s affidavit dealt with averments which concerned the issue as to whether the original agreement, concluded in 2006, had been entered into between the plaintiff and the defendant personally. These averments were relevant in relation to the second relief that was sought in the notice of motion, which was to the effect that the plaintiff’s action should be struck out against the defendant as being bound to fail on the basis that the contract was clearly between the plaintiff and the defendant’s company, rather than with the defendant personally. However, at the hearing of the application, it was conceded on behalf of the defendant that that an application would not be proceeded with, as it was accepted that it was not something that could be decided at an interlocutory stage, but would have to be decided at the trial of the action. Accordingly, it is not necessary to set out these averments.

19. A replying affidavit was sworn by Mr Dennis Guilfoyle on behalf of the plaintiff company on 25 October 2024. In it, he denied that there had been any want of prosecution by the plaintiff. He also prayed the court to forgive the excusable delay that had occurred for the reasons that had been outlined in his affidavit. However, he had not outlined in that affidavit any steps that had been taken which would excuse the delay, save to state that prior to the issuing of the proceedings, he had had numerous meetings with the defendant, wherein he alleged that the defendant had promised that the plaintiff would be paid all sums due and owing to it. He stated that he had been reluctant to issue proceedings as he had wanted to afford the defendant every opportunity to follow through on the promises that he had made. However, when the defendant did not follow through on his promises, the plaintiff company was left with no alternative but to issue the within proceedings.

20. Mr Guilfoyle stated that it was surprising that the defendant had made no reference to his substantial counterclaim that had been filed with his defence, wherein he was claiming losses in the region of €3 million in respect of delay in providing the constructed houses and for negligence and breach of contract in relation to the standard of construction that had been carried out by the plaintiff. He stated that in these circumstances, if the plaintiff had been guilty of delay in the prosecution of its claim against the defendant, the defendant had also been equally guilty of delay in progressing his counterclaim.

21. A replying affidavit was also sworn by Mr Martin O’Carroll, the plaintiff’s solicitor, which was sworn on 24 October 2024. In that affidavit, Mr O’Carroll alleged that the defendant had been guilty of significant delay in relation to his part in the proceedings. He alleged that the defendant had delayed service of the summary summons for a period of approximately seven months, by refusing to nominate solicitors to accept service thereof on his behalf.

22. He stated that when the court had remitted the matter to plenary hearing and after the statement of claim had been served, a full year had elapsed before the defendant delivered his defence and counterclaim on 30 March 2017. He stated that counsel had drafted a detailed notice for particulars arising out of the defence and counterclaim. That had been served on the defendant on 16 May 2018; replies thereto were only furnished on 9 March 2019. Mr O’Carroll stated that he had accepted these periods of delay due to the fact that the defendant’s former solicitor had had a personal health issue at that time. In these circumstances he had been agreeable to facilitate the defendant in having time.

23. Mr O’Carroll stated that he received advices from counsel in February 2020, however due to the onset of the COVID-19 pandemic and the subsequent lockdown which was imposed in March 2020, it was not realistically possible to progress the action as he would have liked for the entire of the following year. Therefore, there had been unavoidable delay between March 2020 and the end of 2021, by which time meetings were arranged with the experts who had been retained on behalf of the plaintiff company.

24. Mr O’Carroll stated that most of 2022 was taken up with obtaining expert reports and documentation to meet the defendant’s substantial counterclaim. He pointed out that the defendant himself had been guilty of delay in pursuing his counterclaim. The plaintiff’s solicitor referred to a letter that had been sent by him to the defendant’s solicitor on 25 February 2021. At the hearing of the application herein, the plaintiff’s counsel laid considerable stress on this letter and on the fact that the defendant had failed to reply thereto. As the plaintiff’s counsel had laid such stress on this letter, it is appropriate to set it out in full:

“Dear Sirs

We refer to the above-mentioned matter and now enclose herewith notice of intention to proceed. You might indicate to us what expert witnesses if any, you wish to call. We would anticipate calling an architect and a tax adviser (James O’Donoghue architect Bluett O’Donoghue Kilkenny and Lesley Monaghan, O’Neill Foley accountants Kilkenny).

It is important that the experts will all have an opportunity to confer on the issues in this case. In particular, we note the allegations set out at paragraphs

7 and 8 of the counterclaim.

Our client was most surprised by these allegations and rather than engaging in lengthy exchange of particulars, it would be preferable that reports be exchanged and experts consult regarding these issues. Perhaps you would take instructions and revert.

Yours sincerely.”

25. Mr O’Carroll went on to state that as could be seen from the pleadings, the within proceedings involve complex issues of law and evidence concerning expert evidence on construction, architectural, valuation and accounting issues, arising out of a substantial building contract dispute between the parties which required careful consideration.

26. He stated that he served a notice of intention to proceed on 12 April 2023. A notice of change of solicitor was served on behalf of the defendant on 2 June 2023. Thereafter, he sought further advices from counsel to complete the proofs. That had been done in June 2022. There was a delay in obtaining a response from senior counsel due to the papers being mislaid by him. In December 2022, following further consultation with the plaintiff, senior counsel directed further proofs in relation to documentation that would be required for proof of the sum set out in the claim and to deal with the counterclaim raised by the defendant. Senior counsel had directed that a further notice for particulars be raised on the defence and counterclaim. That was served on the defendant on 11 March 2024. No reply was received to that notice for particulars, but instead the within motion seeking to strike out the plaintiff’s claim had issued without further notice to the plaintiff.

27. Mr O’Carroll denied that there had been any want of prosecution in the proceedings on the part of the plaintiff. He stated that the within application was merely a last-minute attempt by the defendant to avoid the trial of the action.

28. Mr O’Carroll went on to state that the defendant had not demonstrated any specific prejudice that had been suffered by him as a result of any alleged delay on the part of the plaintiff. He stated that there was only a bald allegation that the defendant and his witnesses would suffer prejudice as a result of the passage of time. However, he pointed out that the defendant’s experts had all sworn detailed affidavits when the matter was originally before the court for summary judgment and before the action had been remitted to plenary hearing.

29. Mr O’Carroll stated that it was incorrect of the defendant to state that no steps had been taken by the plaintiff or his lawyers after 9 March 2019 when the defendant had delivered his replies to the notice for particulars. He stated that upon receipt of those replies, a full brief had been sent to senior counsel, who recommended the retention of an expert architect and accountant to deal with the issues raised in the defendant’s defence and counterclaim. He stated that to that end, he had retained the services of an accountant and an architect. He stated that he had sought the advices of senior counsel on numerous occasions and had consulted with senior counsel and the plaintiff on several occasions, as was necessary given the complexity of the issues involved This additional work had required considerable time. Mr O’Carroll stated that thereafter, on 26 June 2024 the defendant had issued the within application to dismiss the plaintiff’s claim.

30. Mr O’Carroll went on to deal with the fact that his firm had been retained by the defendant to look after certain financial and other matters on his behalf. He stated that he had not been made aware that the defendant had instructed another member of his firm in relation to those matters. He stated that the firm was a large practice which currently had nineteen solicitors in it. He stated that the transactions in relation to which the defendant had received advice from the firm, bore no relevance to the issues the subject matter of the proceedings herein.

31. The plaintiff’s solicitor accepted that there had been some delay in progressing the case on both sides. He stated that such delay was regrettable. He stated that the plaintiff was ready to proceed with his claim against the defendant and he undertook to progress the claim with expedition if the within application was refused.

32. Finally, a responding affidavit was sworn on behalf of the defendant on 26 November 2024. In it, the defendant largely entered into argument with various assertions that had been made by the plaintiff and his solicitor in their affidavits. It is not necessary to set out these counter arguments herein. However, at paragraph 11 of the affidavit, the defendant stated that he believed that his counterclaim was of substance. He stated that he would maintain his counterclaim if the plaintiff’s claim is not dismissed. However, he went on to acknowledge that if the court considered that the plaintiff’s claim ought to be dismissed due to delay, the counterclaim would suffer from similar infirmity and would likely have to be discontinued. At the hearing of the application, counsel for the defendant stated that in the event that the plaintiff’s claim against the defendant was dismissed on grounds of delay; the defendant would consent to having his counterclaim dismissed on the same basis.

33. The defendant went on to state that the primary period of delay of which complaint was being made by him related to the period after delivery of replies to the notice for particulars that had been raised by the plaintiff on the counterclaim, which replies had been furnished on

9 March 2019, until the next substantive step in the proceedings, which was the filing of a notice for particulars by the plaintiff arising out of the counterclaim. In that period of five years, nothing had been done, save for service of a notice of intention to proceed in the previous year on 12 April 2023.

34. The defendant stated that the only step that had been taken prior to the service of that notice of intention to proceed, had been delivery of the letter dated 25 February 2021, which purported to enclose a notice of intention to proceed, but no such notice had been enclosed with the letter. Other than that, the letter only requested that the experts should exchange reports and meet in an effort to narrow the issues. The defendant stated that that letter was the only piece of correspondence that the plaintiff could identify in the entire five-year period of delay. The defendant stated that he believed that it was wholly reasonable for him to assume that the plaintiff was not pursuing the matter given the almost total silence that had ensued during that period.

35. The defendant repeated that he had suffered significant prejudice in the conduct of his defence due to the plaintiff’s delay, as memories would fade and records would become unavailable, particularly from third parties regarding matters that had occurred more than 16 and 18 years previously. The defendant also referred to the fact that he was of advanced years and therefore would have difficulty dealing with the stress of the trial of the action.

36. Finally, he stated that given the delay and lack of activity on the part of the plaintiff in relation to his proceedings, he had concluded that the plaintiff was not going to proceed with the action and therefore he had excluded this claim when he had been settling his affairs and doing estate planning for the benefit of his children and grandchildren.

The Law.

37. The law in relation to the jurisdiction of the court to strike out proceeding on grounds of delay and the principles that should be applied when dealing with such an application, were set down by the Supreme Court in Kirwan v Connors [2025] IESC 21. The test which should be applied when considering an application such as the present application, was set down on behalf of the majority of the Supreme Court at paragraph 26 of the judgment delivered by the Chief Justice in the following terms: “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: -

(i) 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.

(ii) 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;

(iii) 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.

(iv) 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. I agree with what Murray J. says about such cases at paragraph 54 of his judgment.”

Submissions of the Parties.

38. Counsel for the parties were agreed that the applicable legal principles to the within application are those set down in the Kirwan v Connors case.

39. On behalf of the defendant, Mr McGarry SC submitted that under the Kirwan test a two-year period of inactivity was the inflection point, beyond which a defendant would be entitled to bring an application seeking to dismiss the proceedings for want of prosecution. It was submitted that in this case, the delay was more egregious. It arose under a number of headings. Firstly, there had been very considerable delay from the date of the accrual of the alleged cause of action in 2008 and 2010, and the institution of the proceedings in 2014. More importantly, there had been a period of five years inactivity on the part of the plaintiff during the continuance of the action from 9 March 2019, when replies to a notice for particulars were delivered on behalf of the defendant and 11 March 2024, when a notice for particular was raised by the plaintiff. That had been preceded by service of a notice of intention to proceed on 12 April 2023.

40. It was submitted that under the principles set down in the Kirwan case where there was a delay on the part of the plaintiff in the conduct of his proceedings of more than four years, or more than five years, the defendant was entitled almost as of right to an order dismissing the proceedings, unless there were exceptional circumstances which would justify the continuance of the action. It was submitted that there were no such circumstances in the present case.

41. In addition, it was submitted that in this case the defendant had suffered significant prejudice by the plaintiff’s delay in progressing the action. This was because there was a central issue in the case on which oral evidence would be required; being the issue in relation to whether the defendant was personally liable on foot of the contract that had been entered into between the parties in 2006; or whether the contract had been between the plaintiff and the defendant’s company.

42. Furthermore, it was asserted that where the events giving rise to the cause of action were said to have accrued in 2008 and 2010, and where it would be necessary to call oral evidence on the defence of set off in relation to the allegation that the houses had not been constructed in time or in proper and workmanlike manner, this would mean that the defendant and his expert witnesses would have to give evidence at some time after 2025 in relation to houses that had been constructed in or about 2009. It was submitted that in these circumstances there was clear prejudice to the defendant in the conduct of his defence at the trial of the action.

43. Moreover, it was submitted that the defendant was prejudiced having regard to his advanced age, given that he was 82 years of age at the present time and would probably be 83 or 84 years when the action would come on for hearing. It was submitted that in these circumstances the defendant had an unanswerable case under the test set down in Kirwan to have the proceedings against him struck out on grounds of delay.

44. On behalf of the plaintiff, Robert Fitzpatrick SC, stated that he had essentially six points to make in reply to the defendant’s claim for relief. Firstly, he stated that the Kirwan case had not completely done away with all the factors that had heretofore been considered under the test set down in Primor v Stokes Kennedy Crowley [1996] 2 IR 459. In particular, he submitted that in the judgments delivered on behalf of the majority of the Supreme Court in the Kirwan case, there had been reference to a “shift” or “adjustment” of the Primor test. He stated that the majority judgments had not gone so far as to say that the test set down in the Primor case had been completely done away with. It was submitted that the factors that had been identified in the Primor case remained of relevance to the consideration that the court must give to the application, albeit that the significance of those factors may have been diminished as a result of the decision in the Kirwan case.

45. The second point made by counsel was to the effect that one of the factors that the court could take into account was the absence of prejudice to the defendant in having to deal with the case at this remove. It was submitted that in this case there was no actual prejudice to the defendant. This was because the claim was one for money due and owing in respect of work done. That work had been certified by the contract architect. Accordingly, it was simply a claim for money that was due and owing by the defendant to the plaintiff on foot of the building contract.

46. Insofar as oral evidence may have to be given in relation to either the identity of the true parties to the agreement, or in relation to the quality of the works done; the defendant and his witnesses had the benefit of having sworn affidavits previously setting out their case in extenso, which had been done in 2015 for the purpose of resisting the plaintiff’s application for summary judgment. It was submitted that in these circumstances, there was no actual prejudice to the defendant or the witnesses who may be called on his behalf by having to give evidence at the trial of the action some years after the events giving rise to the cause of action. Finally, on this aspect, it was submitted that in his affidavit, the defendant had specifically stated that he did not have any difficulty recalling relevant facts and dates at this remove.

47. The third factor which it was submitted should persuade the court that it was inappropriate to dismiss the proceedings for want of prosecution, was the fact that there had been significant delay by the defendant in dealing with the proceedings. It was accepted by counsel on behalf of the plaintiff that the issue of the defendant’s conduct and any delay that there was on his part in dealing with the proceedings was not of the same level of significance has had been held to be the case under the old Primor test. Nevertheless, it was submitted that delay on the part of the defendant remained relevant.

48. It was submitted that there had been several periods of delay on the part of the defendant in dealing with the present proceedings. Firstly, there had been a delay in delivering his defence and counterclaim, which was only provided nine months after receipt by him of replies that had been furnished by the plaintiff on his statement of claim. It was submitted that this delay was not insignificant. Secondly, the plaintiff had raised a notice for particulars on the defence and counterclaim which had been filed on behalf of the defendant; the defendant had taken 10 months to reply to that notice for particulars. It was submitted that the letter that had been sent by the plaintiff’s solicitor on 25 February 2021, which had purported to enclose a notice of intention to proceed, had identified their expert witnesses and had suggested that the experts should exchange reports and should meet in an attempt to narrow the issues, was a significant letter. It was the submitted that it was also significant that it was never replied to. No step was taken by the defendant upon receipt of that letter. A new notice of intention to proceed had been served by the plaintiff on 13 April 2023.

49. Thirdly, in the defendant’s responding affidavit, he had stated that discovery may be necessary to deal with the issue that the building agreement had been concluded between the plaintiff and the defendant’s company, rather than with the defendant personally. That averment had been made in an affidavit sworn on 13 July 2015. However, on 26 June 2025 at the hearing of the within application, counsel had raised the possibility that discovery may be required. Thus, nothing been done by the defendant in relation to the issue of discovery in the last 10 years. It was submitted that in these circumstances, the defendant had delayed both in relation to his defence of the plaintiff’s claim and in the prosecution of his counterclaim.

50. The fourth issue which the court was urged to take into consideration and which it was submitted leaned against the grant of the reliefs sought by the defendant, concerned the work carried out by the plaintiff’s solicitor. It was submitted that the plaintiff’s solicitor had had to carry out work in preparation for the trial of the action as distinct from being a formal step taken in the proceedings. Counsel stated that this preparatory work was very much in the nature of work that might be done under the surface of the water and therefore would not be seen, but was nevertheless essential, as distinct from procedural steps in the proceedings which were steps that were taken above the surface of the water and were therefore visible.

51. It was submitted that the distinction between necessary preparatory work and formal steps in the proceedings had been recognised in the judgment of Hogan J in the Kirwan case at paragraph 156. It was submitted that Murray J, at paragraph 47 of his judgment, had also acknowledged that a plaintiff could be taking positive steps to prepare for the trial of an action, without taking procedural steps in the action.

52. It was submitted that in the affidavit sworn by the plaintiff’s solicitor, he had clearly set out the various steps that had been taken in relation to the briefing of counsel, having consultations with the client and with senior counsel, and raising notices for particulars as had been and directed by senior counsel. It was stated that considerable steps had been taken by the plaintiff’s solicitor which were necessary in relation to the trial of the action, but which did not necessarily constitute formal steps in the conduct of the proceedings.

53. It was submitted that after 11 March 2019, when the motion had been struck out on consent, the plaintiff’s solicitor had taken considerable steps to prepare the case for the trial of the action. In this regard, it was submitted that the court had to have regard to the fact that the plaintiff was not only dealing with his claim against the defendant, but also had to deal with a very substantial and complex counterclaim that had been raised on behalf of the defendant. It was submitted that it was not correct to say that there had been a five-year period of inaction following 11 March 2019. It was submitted that having regard to the chronology that had been averred to by Mr O’Carroll in his affidavit, significant steps had been taken in relation to the investigation of the counterclaim raised by the defendant and assembling the necessary witnesses to deal with it. In this regard, it was noteworthy that the counterclaim was in monetary terms over 10 times larger than the plaintiff’s substantive claim against the defendant.

54. The fifth ground which was put forward on behalf of the plaintiff was to the effect that there were significant distinguishing features between the facts in this case and the facts in the Kirwan case. It was submitted that this case was primarily going to be a documentary evidence case. There was no evidence that any documents had been lost or destroyed. Secondly, as already noted, the defendant and his witnesses had sworn extensive affidavits in 2015. Therefore, their memory of events and their evidence on the essential issues, would not be diminished by the passage of time. Thirdly, the defendant had made reference to the necessity to obtain discovery of documents in 2015, but he had done nothing in relation to that in the following 10 years. In the Kirwan case there had been a stay placed on a judgment; that was not a feature in this case. In this case there was a counterclaim; which was not present in the Kirwan case. Thus, given the size and complexity of the counterclaim, it had required in-depth analysis, which had led to the lengthening of the preparatory work for the trial of the action. Finally, it was submitted that in applying the Kirwan test to the facts in the present case, one was not dealing with a period of delay of in excess of four years from March 2019 onwards. It was submitted that it was clear from the documents exhibited, that the plaintiff’s solicitor had attempted to move things forward with the defendant by virtue of delivery of the letter of 25 February 2021. Furthermore, in the intervening period, he had been carrying out significant work in relation to both preparation of the claim and in relation to defence of the substantial and complex counterclaim that had been raised by the defendant. It was submitted that where there was only an assertion of generic prejudice made on behalf of the defendant and where there was no reality to that claim, given that the defendant and his witnesses had sworn extensive affidavits in 2015, there was no basis on which to dismiss the proceedings at this stage. In addition, there was no assertion that the defendant had been deprived of the evidence of any witnesses, or of any documents as a result of the passage of time.

55. It was submitted that the court should have regard to the dicta of the Chief Justice at paragraph 27 of his judgment where he had stated that the test laid down in paragraph 26 was not a mechanical test. It remained for the judge dealing with each application to look at the case as a whole and to apply their judgement, particularly in borderline cases. It was submitted that when one had regard to all the factors outlined above, it was not appropriate to grant the relief sought by the defendant in his notice of motion.

56. In response, Mr McGarry SC stated that the keyword in the test set down in the Kirwan case was the word ‘cumulative’ that had been used by the court in relation to delay. It was submitted that this court had to have regard to the total period of delay that had ensued from the accrual of the cause of action up to the present, when considering whether there had been inordinate delay which would justify dismissing the proceedings at this stage.

57. In particular, it was submitted that the court could have regard to the period of extraordinary delay of five years subsequent to March 2019 where nothing of any significance had been done, save for service of a notice of intention to proceed and even after that, it had taken a further 11 months for the plaintiff to take any formal procedural step consequent thereon.

58. In relation to the failure of the defendant to reply to the letter of 25 February 2021, it was submitted that that was not relevant, because the defendant had not been called upon in that letter to take any particular step in the proceedings. The fact that he had not replied to that letter, did not prevent the plaintiff progressing his action against the defendant.

59. Insofar as it had been asserted by the plaintiff that the defendant had been guilty of any delay in the progressing of his counterclaim, it was submitted that that was not relevant to the within application. A counterclaim was a separate action, albeit within the same set of proceedings. The conduct of the counterclaim by the defendant did not affect the ability of the plaintiff to progress his substantive claim against the defendant. Counsel reiterated that the defendant had expressly given instructions that in the event that the plaintiff’s action against him was dismissed on grounds of delay, his counterclaim could be dismissed on the same basis.

60. It was submitted that in the judgment of Hogan J in the Kirwan case at paragraph 173 it had been stated that the longer the period of inactivity, the more compelling the reasons would have to be for allowing the action to continue. It was submitted that in the present case there were no compelling reasons furnished by the plaintiff which would justify permitting the proceedings to continue.

Conclusions.

61. Having considered the affidavit evidence in this case and the documents exhibited thereto, together with the submissions of counsel and having regard to the decision in Kirwan v Connors, I have come to the conclusion that the plaintiff’s action against the defendant must be dismissed for want of prosecution.

62. The decision in the Kirwan case makes it clear that a period of inactivity of two years, is the inflection point beyond which a defendant can apply to have proceedings against him struck out for want of prosecution. I accept the submission made by counsel on behalf of the defendant that where there has been complete inactivity on the part of the plaintiff for a period in excess of four years, the defendant is prima facia entitled to an order dismissing the proceedings, particularly where the proceedings will involve oral evidence, unless the plaintiff can point to some significant circumstances that would render such an outcome unreasonable or unjust.

63. The test set down at paragraph 26 of the judgment of the Chief Justice in the Kirwan case provides that 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 not 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.

64. I am satisfied that the issues that will arise at the trial of the action, in particular the issue as to whether the contract that was concluded in 2006 was concluded between the plaintiff and the defendant personally, or with the defendant acting as representative of his company, will require oral evidence. I am satisfied that given the passage of time that has elapsed to date and will inevitably elapse until the trial of the action, the defendant will be at a considerable disadvantage in dealing with this issue at the trial of the action.

65. I accept the evidence given by the defendant that he is of advanced years and has had health difficulties in the past and continues to have some health difficulties in the form of suffering from type II diabetes. I find as a fact that the defendant has established that he will suffer prejudice if this action is permitted to proceed because he and his witnesses will have to deal with issues in relation to the conclusion of a contract in 2006 and in relation to the quality of construction works that were carried out in the period 2006/2009. I am satisfied that as this action will not probably get on for hearing at the very earliest until sometime in 2026, the defendant and his witnesses will undoubtedly suffer prejudice by having to give oral evidence in relation to events that arose almost 20 years prior to the trial of the action.

66. Insofar as it was argued on behalf of the plaintiff that the fact that the defendant and his witnesses swore affidavits in response to the motion seeking summary judgment, which affidavits were sworn in 2015; I am not satisfied that the swearing of those affidavits will be sufficient to undo the prejudice that undoubtedly arises given the enormous passage of time that has occurred between the date of the events which will be the subject of controversy at the trial of the action and the present time and further until the date of the likely hearing of the action if the defendant’s application is refused.

67. Turning to the assertion made on behalf of the plaintiff that the relief ought not to be granted because the defendant was guilty of delay in his defence of the plaintiff’s action against him, I do not accept that this argument is well-founded.

68. In relation to the relevance of any inactivity that there may have been on the part of the defendant, the decision in Kirwan v Connors makes it clear that that issue is not of the same relevance as heretofore. At paragraph 14 of his judgment, the Chief Justice made it clear that plaintiffs and defendants are not co-adventurers in litigation. They do not have the same interest in bringing it to a conclusion. The essential structure of proceedings involves a plaintiff invoking the jurisdiction of the court to summon the defendant requiring them to answer his claim. The Chief Justice pointed out that the plaintiff has an interest in and responsibility for bringing that claim to trial. The same cannot be said of a defendant who will obtain nothing from success in the proceedings other than being restored to the position that they were in prior to the commencement of those proceedings.

69. The Chief Justice stated that a defendant is not required to spend time, energy and resources on a claim which may never be heard. Defendants should not be criticised for doing no more than is required to respond to a claim and to be ready to meet it if and when it is prosecuted.

70. Having regard to the chronology of the proceedings as set out earlier in the judgment, I find that there has not been any demonstrable culpable delay on the part of the defendant. While there may have been some periods where he did not respond to various matters as quickly as might have been done, there were no periods where he was grossly in breach of his obligations under the rules to take particular steps. Insofar as the plaintiff sought to rely on the failure of the defendant to reply to its letter of 25 February 2021, I do not find that this failure to respond to that letter was material. That letter purported to serve a notice of intention to proceed, which was not actually enclosed with the letter. All it did thereafter was to identify the experts who were going to be retained on behalf of the plaintiff and it went on to suggest that the experts for each side should exchange reports and should meet to attempt to narrow the issues in the case. While that may have been a very sensible suggestion, the fact that the defendant did not take it up, did not prevent the plaintiff progressing with its action in any way.

71. It is also noteworthy that while that letter was written by the plaintiff’s solicitor in February 2021, it was not until 2 November 2021, that a letter was sent to the expert witnesses retained by the plaintiff seeking a report from them. It is extraordinary that a plaintiff’s solicitor would suggest that experts should meet at a time prior to having obtained a report from his own experts. Having such a meeting without knowing what your experts were going to say in their reports, would be foolhardy in the extreme. Leaving that aside, it shows that the failure on the part of the defendant to respond to that letter, did not hold the plaintiff up, because he had not even sought a report from his experts and did not do so until approximately nine months later.

72. I accept the submission made on behalf of the defendant that even leaving aside the delay in instituting the proceedings, the critical period of delay in this case is in the period from

9 March 2019 until 11 March 2024 when a notice for particulars was raised by the plaintiff in relation to the counterclaim. The plaintiff’s solicitor has attempted to excuse this period of inactivity partially by reference to the restrictions that were imposed following the onset of the COVID-19 pandemic in March 2020. He asserted that due to those restrictions it was not possible to progress the claim further until the end of 2021. I do not accept that evidence. While there were undoubtedly significant restrictions imposed in March 2020, the courts’ system was back up and running on a remote basis from in or about mid-May 2020. It was not possible to have witness actions heard after that time. However, it was possible to file documents, to file affidavits and to have motions heard remotely during the period May 2020 until in-person applications resumed again in or about May 2021.

73. I find as a fact that as and from May 2020, it was possible for solicitors to conduct business with their clients either in person in their offices, or remotely via Zoom or some other platform. There was no reason why the plaintiff’s solicitor could not have obtained advices from counsel and could not have instructed expert witnesses and held consultations with them and with his client during this period; all of which could have been done remotely. Accordingly, I do not accept this as a good explanation for this period of 18 months delay.

74. While the court accepts that there has to be work that is done ‘under the surface’ so to speak in relation to preparation of a case, the court does not accept that it was permissible to have a period of almost 5 years inactivity where the only step taken was to serve a notice of intention to proceed and to send one letter to the defendant’s solicitor. It is clear from the chronology that has been set out earlier in the judgment, that no substantive steps were taken by the plaintiff to progress his action during this five-year period. In these circumstances, the court is satisfied that correctly applying the test set down by the Supreme Court in the Kirwan v Connors case, the plaintiff’s action against the defendant must be dismissed.

75. Given that period of inactivity, it is probably not necessary for the defendant to establish prejudice on his part in relation to dealing with the issues that will arise at the trial of the action. However, I find as a fact that given the defendant’s age and given that the defence of the plaintiff’s action against him will involve oral evidence at many years remove from the date of the events giving rise to the cause of action, I find as a fact that the defendant will suffer prejudice in dealing with these issues at the trial of the action.

76. For these reasons, the court will accede to the defendant’s application to strike out the proceedings for want of prosecution.

Proposed Final Order.

77. Having regard to the findings made by the court in its judgment herein, it is proposed that the final order should contain the following:

(a) Make an order pursuant to para. 1 of the defendant’s notice of motion dated 26 June 2024, pursuant to O. 122, r. 11 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court, dismissing the within proceedings against the defendant for want of prosecution;

(b) having regard to the submission made by counsel for the defendant in relation to the counterclaim, the court would propose on consent to dismiss the counterclaim for want of prosecution.

78. As this judgment is being delivered electronically, the parties shall have one week within which to furnish brief written submissions on the terms of the final order and on costs and on any other matters that may arise.

79. The matter will be listed for mention at 10.30 hours on 23 July 2025 for the purpose of making final orders.