High Court dismisses personal injury claim for delay after four years of total inactivity by plaintiff.

[2025] IEHC 589

THE HIGH COURT Record No 2013/8549P BETWEEN EMILY MURPHY

PLAINTIFF -AND-

AER LINGUS GROUP PLC AND AER LINGUS LIMITED

DEFENDANTS

JUDGMENT of Mr. Justice Mark Heslin delivered on the 31st day of October 2025

Introduction

1. These proceedings commenced over 12 years ago, when the plaintiff issued a personal injuries summons, on 9 August 2013. The plaintiff claims that in the course of her employment as cabin crew she suffered personal injuries when an aircraft “landed heavily” on a flight from Dublin to Birmingham, on 13 August 2011. In this application, the defendants seek an order dismissing the plaintiff’s claim by reason of delay.

The law

2. The approach to an application of this type was recently clarified in Kirwan v. Connors & Ors. [2025] IESC 21 (“Kirwan”) wherein the Supreme Court reformulated the test in Primor Plc v. Stokes Kennedy Crowley [1996] IR 459, with a greater emphasis on the passage of time.

Guiding principles

3. For present purposes, it is sufficient to quote the analysis which appears at paragraph 26 of the judgment delivered by the Chief Justice, on behalf of the majority:

“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.” (emphasis added)

Evidence

4. Bearing the foregoing in mind, I now turn to the facts which emerge from a careful examination of the pleadings and the affidavit, sworn on August 2024, by Mr. Billy Brick solicitor for the defendants, as well as the exhibits thereto. The plaintiff did not swear any affidavit in opposition to this application. Whilst still ‘on record’ the plaintiff’s solicitors have been unable to obtain instructions, and I will return to this issue at the end of this judgment.

Chronology

5. A chronology of relevant events is as follows: -

6. On 13 August 2011, the plaintiff allegedly suffered injury and loss when, according to her pleaded claim “The aircraft landed heavily. There was a heavy impact and the Plaintiff’s upper body was forced downward into the rigid seat.”

7. On 7 August 2013, an application was submitted to the Personal Injuries Assessment Board (“PIAB”). This was just 6 days prior to the expiry of the two-year limitation period.

8. On 9 August 2013, the plaintiff’s personal injuries summons was issued.

9. On 11 August 2014, an Appearance was entered on behalf of the defendants.

10. On 26 August 2014, the defendants raised a notice for particulars. This raised 13 queries some of which had sub-paragraphs. In objective terms, it was not a particularly long document. The particulars sought ran to less than 3 pages and there is nothing to suggest that the plaintiff, acting with reasonable diligence, would have any difficulty providing replies within a relatively short period. This is not what occurred.

11. On 8 December 2016, the defendants’ solicitors wrote to the plaintiff’s solicitors seeking replies to particulars, stating inter alia: -

“We note that the plaintiff has failed to progress their case or take any positive steps in over

2 years”.

12. The foregoing is a statement of fact. There had been silence from the plaintiff who neither furnished replies, nor suggested that replies were unnecessary. That silence continued.

13. On 3 November 2017, the defendants issued a motion seeking an order to compel the plaintiff to deliver replies to particulars. Thus, faced with prolonged inaction by the plaintiff, it was the defendants who sought to ‘prod’ the plaintiff into moving her case along.

14. Against that backdrop, an order was made by this court, on 11 December 2017 (Barr J.) directing that the plaintiff deliver replies to particulars within 4 weeks; and the plaintiff was ordered to pay the defendants’ costs, when taxed and ascertained.

15. On 4 January 2018, replies to particulars were delivered by the plaintiff’s solicitors. I pause to note that this was over 3 years and 3 months after the Notice for Particulars had been raised by the defendants.

16. On 2 February 2018, the defendants’ solicitors wrote to the plaintiff’s solicitors indicating that the plaintiff had failed to provide sufficient replies; calling for further information; and stating, inter alia:

“… confirm by return if the plaintiff intends on issuing a notice of intention to proceed given the lapse of 3 years since the last exchange of pleadings. Order 122 rule 11 refers.”

17. Order 122, rule 11 provides that:-

“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.”

18. On 21 February 2018, the defendants’ solicitors wrote again to the plaintiff’s solicitors pointing out the absence of a reply to their 2 February 2018 letter and warning that a further motion would issue if full replies were not provided.

19. On 19 April 2018, the plaintiff’s solicitor filed and served a notice of intention to proceed.

20. The defendants issued a further motion, with a return date of 16 July 2018, seeking an order dismissing the plaintiff’s claim for failure to deliver full replies to particulars. This constituted further proactivity by the defendants in the face of lengthy delay by the plaintiff.

21. On consent, an order was made striking out the defendants’ second motion on the basis that the plaintiff’s replies would be furnished promptly, and an order was made for the defendants’ costs, with a stay.

22. On 13 July 2018, the plaintiff provided further replies to particulars as well as updated particulars of negligence. Bearing in mind that additional particulars had been sought by the defendants, on 2 February 2018, it took over 5 months and a second motion for the plaintiff to deliver further particulars. However, particulars of special damages remained outstanding.

23. On 18 October 2018, the defendants delivered their Defence. Thus, the pleadings were ‘closed’ at that point.

24. On 13 November 2018, the defendants’ solicitors wrote to the plaintiff’s solicitors, pointing out delay and stating inter alia:-

“…confirm when your client intends on issuing notice of trial”

25. Once more, the foregoing was an attempt by the defendants to prompt the plaintiff to progress her own case. Despite this, no notice of trial was served by the plaintiff.

26. On 28 March 2019, the defendants’ solicitors wrote to the plaintiff’s solicitors stating inter alia:- “… There has been inordinate and inexcusable delay on the part of your client in bringing forward proceedings in this case, which delay is entirely prejudicial to our client. It is well documented that the incident the subject matter of these proceedings occurred over 7 at the half years ago. The plaintiff has stalled at each stage of proceedings. The defendant has proactively sought to progress matters, bringing motions after extensive periods of inaction and delay on the plaintiff’s part…”

27. The foregoing seems to me to summarise matters very accurately. It did not produce any action by the plaintiff.

28. On 15 August 2019, the defendants’ solicitors wrote to the plaintiff’s solicitors in similar terms, which letter concluded as follows:-

“Our client is not willing to allow the plaintiff to leave these proceedings sit in abeyance indefinitely to the detriment and expense of our client”

29. On 2 September 2019, the plaintiff’s solicitors issued a letter seeking voluntary discovery. I pause to say that this was over 10 months after receiving the defendants’ Defence, dated 18 October 2018. This letter suggested that discovery be made within 8 weeks and called for a reply within 21 days, failing which a motion would be issued.

The nature of the case

30. It is clear from the nature of the plaintiff’s claim and the contents of the 2 September 2019 request for voluntary discovery that a trial of the action would involve oral evidence from a range of parties. For example, the plaintiff would have to give evidence in relation to what did or did not occur, on 13 August 2011.

31. Furthermore, the plaintiff made clear her intention to retain an expert witness. The reason given for seeking certain categories of discovery was “… To ensure that the plaintiff’s expert is properly briefed, thereby enabling the plaintiff to satisfy the court in respect of…” [the pleas made by her in the proceedings].

32. As the 2 September 2019 letter makes clear, issues arising in the case, insofar as the plaintiff was concerned, included:-

• whether, as the plaintiff “…believes, design, construction, installation and maintenance of the relevant seat was inappropriate and/or inadequate”;

• whether “… the defendants knew, or ought to have known, of problems experienced by staff in using the No. 1 crew seat of Airbus 320 (either on the specific plane involved in this incident or on other similar planes in the fleet)…”;

• “whether padding and/or shock absorbent material was fitted and/or replaced on these crew seats”;

• whether “…the defendant failed to employ appropriately qualified staff…” and “…also failed to provide adequate training to staff members…”;

• “…the extent to which this was a ‘hard’ landing…” given that “… the plaintiff pleads that the aircraft was landed too steeply, causing a severe impact on the runway, and that the aircraft was operated in a manner which caused an extreme downward pressure to be applied, beyond what might reasonably have been expected…” all of which assertions are denied by the defendants.

Dependent on oral evidence

33. Thus, is was a complex case with a range of issues which would fall to be determined at a future trial, based on oral testimony which would include that of the plaintiff as to matters going back well over a decade, as well as expert evidence on the plaintiff side, and such witnesses as the defendants might call, be they witnesses as to fact or experts.

34. It is certainly the case that the defendants did not respond to the request for discovery. However, in the absence of any response, the plaintiff failed to issue the motion once the 21 day deadline, imposed by the plaintiff, had expired. Nor did the plaintiff issue a motion seeking an order for discovery at any stage as weeks gave way to months.

35. On 30 March 2021, the defendants served a notice of change of solicitor.

36. On 31 March 2021, namely, 18 months after seeking voluntary discovery, the plaintiff’s solicitors wrote to the defendants’ solicitors stating inter alia:-

“… if we do not receive a response to our discovery request within 21 days from the date hereof, we will issue a notice of motion seeking an order for discovery without further notice to you”

37. Despite the foregoing, the plaintiff issued no such motion.

38. On 7 February 2022, the plaintiff’s solicitors served a notice of intention to proceed and threatened to issue a motion in default of receiving, within 21 days, confirmation that voluntary discovery would be made. I pause to say that this letter was sent by the plaintiff’s solicitors some

2 years and 5 months after the letter seeking voluntary discovery.

39. It is appropriate to say that it was open to the plaintiff to issue a motion seeking an order for discovery at any point from the end of September 2019, but the plaintiff never issued any such motion.

40. On 3 April 2022, the defendants’ solicitors furnished a detailed response in relation to the

18 categories of documents requested by way of discovery. In summary, the defendants:-

• agreed to make discovery of part, but not all, of categories (1) and (2);

• refused to make discovery of categories (3), (4) and (5);

• sought further clarification regarding category (6) and (7);

• agreed to make discovery of categories (8) and (9);

• contended that category (10) was covered by categories (9) and (11);

• agreed to make discovery of category (11);

• sought further clarification of category (12);

• contended that category (13) was covered by categories (9) and (11);

• contended that category (14) was covered by categories (9) and (11);

• regarding category (15), confirmed that no “Load 15 Report” was generated;

• regarding category (16), confirmed that no “hard landing Report” exists;

• refused category (17) as being too general and sought clarification;

• contended that category (18) was covered by categories (9) and (11).

41. On any analysis, the 3 April 2022 letter from the defendants’ solicitors required a response from the plaintiff in order for the question of discovery, and the proceedings themselves, to be progressed. There has never been any such response. Rather, the defendants’ letter was followed by further silence and delay on the part of the plaintiff, which silence has continued to this day.

42. On 8 April 2024, the defendants’ solicitors wrote to the plaintiff’s solicitor pointing out that their letter of 3 April 2022 had been unanswered and stating inter alia that:-

“There has been inordinate and inexcusable delay on the part of the plaintiff in prosecuting this case”

43. On 15 August 2024, the present motion was issued, grounded on the affidavit sworn, on 14 August 2024, by the defendants’ solicitors.

Delay

44. In light of the facts detailed above, a number of points deserve emphasis, as follows. If a formal request for voluntary discovery constitutes, or is akin to, a pleading, the last pleading by the plaintiff was on 2 September 2019, namely, almost 5 years before the defendants issued the present motion. However, the cumulative delay on the plaintiff’s part is considerably in excess of that period, i.e.

• 3 years and 3 months to deliver Replies to Particulars;

• a further 5 months to deliver full particulars;

• 10 months between receiving the Defence and writing to seek voluntary discovery;

• 2 years and 5 months between asking for voluntary discovery and threatening, for a second time, to issue a motion, without ever issuing same; and

• failing to provide any response to the defendants’ 3 April 2022 reply to the request for voluntary discovery at any stage prior to the present motion issuing, 2 years and 4 months later, in August 2024.

7 years +

45. Bearing in mind that an Appearance was entered on 11 August 2014; and this motion was issued 10 years later, on 15 August 2024, I am satisfied that the cumulative delay for which the plaintiff is exclusively responsible well exceeds 7 years.

No acquiescence by defendants

46. At para. 15 of his judgment in Kirwan, the Chief Justice stated:-

“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 refrain 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.”

47. Nothing of the sort arises in this case. At para. 190 of his judgment, Hogan J. made clear 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”. There has been no acquiescence by the defendants.

Pro-activity by defendants

48. At para. 14 of his judgment, the Chief Justice made clear that parties “are not co-adventurers in litigation with the same interest in bringing it to a conclusion”. Despite this, it was the defendants who made repeated efforts to try and prompt the plaintiff into taking action, with a view to progressing the case towards a conclusion by means of a trial.

Motion to come ‘off record’

49. The only development on the plaintiff side since the present motion issued was for the plaintiff’s solicitors to issue a motion, in mid-October 2025, seeking to come ‘off record’, which motion is returnable for 15 November 2025. The issuing, by the plaintiff’s solicitors, of a motion to come off record, is not a step in the proceedings. Thus, as of the 16 th October 2025 hearing date, the last formal step taken by the plaintiff was the letter sent by her solicitors, over 6 years ago, on

2 September 2019, seeking voluntary discovery.

Discussion and decision

50. Given the facts set out above, this is a situation where there has undoubtedly been “a cumulative period of complete inactivity for more than five years”, bringing this application firmly with the category of cases identified by the Chief Justice at para. 26(iv) of his judgment in Kirwan. That being so, this court is 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”. I can identify nothing of the kind. Whilst recognising, at para. 26(iv) the Chief Justice did not purport to set out an exhaustive list, it can be said with confidence that this case does not fall into any of the three broad categories to which he referred, i.e.

o exceptional situations in which the plaintiff faced educational social or economic disadvantage, or otherwise in progressing their action, o 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

o where there has been serious misconduct by the defendant in the course of the proceedings.

51. There has been no engagement by the plaintiff with this motion. Thus, the plaintiff has not identified any reason why the court should not strike out the proceedings.

52. I am very conscious that in Kirwan the Chief Justice cautioned against the application of the test in a ‘mechanical’ manner. The approach taken to the present motion has involved the application of this court’s judgement to the particular facts, guided by the Kirwan principles.

53. The factual position, as things stand, is that discovery has neither been agreed nor made and it is clear that discovery would clear up significant aspect of this complex claim. Thus, there is no prospect whatsoever of a trial this year. Nor could it be said with any confidence that a hearing would take place in the first half of 2026. Even if a trial were to happen as ‘early’ as July 2026, such a trial would be some 15 years after the events in question.

54. It seems to me that any trial judge asked to decide this case would be expected to make decisions based, in material part, on the plaintiff’s recollection of events which occurred 15 years earlier. It does not seem to me that the approach outlined by the Chief Justice at paragraph 26 (iv) in Kirwan requires a defendant to demonstrate prejudice. That said, the potential for prejudice in the present case, arising from the degrading of witness memory, seems obvious. It is also something the defendants have pointed to, in that para. 11 of Mr. Brick’s grounding affidavit contains inter alia the following averments:-

“As time passes it becomes more and more difficult for the defendants to defend these proceedings, particularly in circumstances where individuals’ memories fade over time or witnesses may no longer be available. In these circumstances the failure to engage with the defendants and or to progress the proceedings in any way howsoever arising has caused prejudice to the defendants.”

55. I am conscious that the defendants have not identified any specific witness who is no longer available and, therefore, do not regard the potential unavailability of unidentified witnesses as constituting prejudice. However, the passage of time, of a decade and a half, between (i) the events complained of and (ii) the earliest conceivable trial date, seems to me to prejudice the ability of a trial court to reach findings of fact based on witness recollection of what occurred or not on 13 August 2011.

56. I say the foregoing, not because the defendants were required to demonstrate prejudice, but because it reflects this court’s engagement with the entire of the facts and issues disclosed in the pleadings and evidence before coming to a decision on this motion. The only just outcome, in my view, is to grant the relief sought by the defendants.

Adjournment application

57. At the hearing of this motion, which took place on 16 October 2025, the plaintiff’s solicitor, Mr. McCarten, appeared to explain that his firm has not heard from the plaintiff in approximately 3 years. Mr. McCarten, to whom I am grateful, referred to his unsuccessful efforts to obtain instructions. He confirmed inter alia that the plaintiff has neither answered nor returned his calls. He further confirmed that the plaintiff was furnished with the papers concerning this motion, in September 2024. In circumstances where Mr. McCarten’s firm, whilst on record for the plaintiff, had no instructions from her with regard to the present application, it was not possible for the plaintiff’s solicitors to make any submissions concerning this application .

58. At the beginning of the hearing, Mr. McCarten made an application for an adjournment of the matter until after the determination of his firm’s motion to come off record, which motion had been issued the previous day. This application for an adjournment was opposed by the defendants’ counsel, Mr. Quinn BL. For the reasons explained in a short ex tempore ruling I declined to adjourn the hearing. In summary, the defendants’ motion issued over a year ago and the plaintiff has long been on notice of it. Non - engagement by the plaintiff was not a valid basis for this court to refuse to hear the defendant’s application. A specific hearing date was given and, as of 16 October, a specific courtroom; a busy Registrar; and a particular Judge had all been assigned to deal with this, and no other matter. Given that court resources available to the public are not unlimited, it seems to me that there was obvious prejudice to the public interest if an adjournment was granted, as it would constitute a waste of the foregoing resources, not to mention adding to costs. I made clear that different considerations would apply if there was any suggestion that the motion and not been served.

59. Given the foregoing circumstances, and the non-attendance of the plaintiff at the hearing, it seemed to me to be particularly important that the plaintiff would understand, clearly, the reasons for this court’s decision. Therefore, whilst indicating on 16 October that I was granting the relief sought, I committed to delivering a written decision (in advance of the hearing date of the motion to come off record) which would explain the reasons in full, which judgment could be provided to the plaintiff.

60. For the reasons set out in this judgment, I am granting the relief sought.

61. Having been entirely successful in their application, the defendants have a presumptive right to costs and I indicated at the conclusion of the hearing an intention to make that award.

62. This case has been listed before me at 10:30 AM on Friday, 7 November 2025 for the purpose of making final orders.