Court strikes out dormant appeal for want of prosecution and delay after 20+ years.

THE HIGH COURT

[2025] IEHC 704

Record No. 2002/328CA

BETWEEN

GRELLAN O’KELLY (AS PERSONAL REPRESENTATIVE OF THE

ESTATE OF MARIE LUCY O’KELLY)

PLAINTIFF/RESPONDENT

AND

NIALL MCGOVERN (AS PERSONAL REPRESENTATIVE OF THE

ESTATE OF RAYMOND MCGOVERN)

DEFENDANT/APPELLANT

JUDGMENT of Mr Justice Barr delivered ex tempore on the 5th day of December 2025.

Introduction.

1. In Circuit Court proceedings bearing title "Marie Lucy O'Kelly, plaintiff, v Raymond McGovern, defendant", the original plaintiff obtained judgment in default of appearance against the original defendant on 17 December 2001.

2. Under the terms of the order, the court ordered that the plaintiff should recover from the defendant possession of the premises at 46 Jamestown Road, Inchicore, in the City of Dublin comprised in folio 2845L (hereinafter “the property”). The order further provided that there should be a stay on the execution of the order for possession until 1 February 2002.

3. Having obtained an extension of time within which to appeal that order, the original defendant served a notice of appeal on the original plaintiff on 12 March 2003. Thereafter, he did nothing to prosecute his appeal.

4. On 10 October 2019 the original defendant died. On 1 July 2023, the original plaintiff died.

5. The present defendant was substituted as defendant in the proceedings by order dated 21 November 2023. The present plaintiff was substituted as plaintiff in the proceedings by order dated 19 February 2024.

6. When no steps were taken to prosecute the appeal, the plaintiff issued the present motion on 31 May 2024, which seeks an order striking out the defendant's appeal for want of prosecution and delay.

Chronology.

7. While the material dates have been outlined above, it is necessary to set out a more detailed chronology. The property the subject matter of these proceedings was originally owned by one Charles McGovern. In the equity civil bill, issued on 8 June 2001, it was pleaded that the plaintiff brought the action on her own behalf and in the alternative was acting as executor and trustee of the last will and testament of Mr Charles McGovern, who had executed his will on 22 February 1967. It was pleaded that he had died in 1970. It was pleaded that under the terms of the will the trustees were to have the trust fund valued and thereupon should transfer two thirds of the sum to the plaintiff absolutely, with the remaining one-third to be transferred to the Commissioners of Charitable Donations and Bequests for Ireland to hold same on trust for St Joseph's Young Priests Society.

8. It was pleaded that following the death of the testator's wife in 1971, the defendant, being the plaintiff's brother, and some other siblings continued to reside in the property. Over time, the other siblings left the property, but the defendant remained therein. The original plaintiff pleaded that in order to maintain good family relations, she permitted her brother to remain living in the property under licence. The defendant had resided there alone for approximately twenty years prior to issue of the equity civil bill.

9. In or about the year 2000, Dublin Corporation indicated to the plaintiff that due to the state of the property they intended to take action under the Derelict Sites Act 1990.

10. When the original defendant would not leave the property, the original plaintiff issued the equity civil bill seeking an order for the ejectment of the defendant and an order granting possession of the property to her.

11. The civil bill was served on the original defendant on 19 October 2001. On 23 November 2001 the original plaintiff issued a notice of motion seeking judgment in default of appearance against the defendant. That motion was made returnable to 3 December 2001.

12. The original defendant failed to appear in court on 3 December 2001. The motion was adjourned to 17 December 2001. The original plaintiff wrote to the defendant on 5 December 2001 advising him of the adjournment.

13. The original defendant failed to appear at the hearing of the motion on 17 December 2001. The learned Circuit Court judge made an order for possession in favour of the original plaintiff on that day. A stay was placed on the execution of the order until 1 February 2002. The operative part of the order provided as follows:

“THE COURT DOTH ORDER that the plaintiff do recover from the defendant possession of the premises at 46 Jamestown Road, Inchicore, in the city of Dublin comprised in folio 2845L. And the court doth reserve the costs. And the court doth further order that execution for possession hereon be stayed until 1 February 2002.”

14. The original defendant did not vacate the property after 1 February 2002. The original plaintiff obtained an execution order dated 28 March 2002 authorising the County Sheriff of Dublin to take possession of the premises and deliver same to the plaintiff. On 15 April 2002 the County Sheriff attended at the property and took possession of it and delivered possession to the plaintiff. The defendant subsequently unlawfully re-entered the property.

15. By notice of motion dated 28 June 2002, which was returnable on 11 October 2002, the original defendant sought to set aside the order of the Circuit Court dated 17 December 2001. The application was refused, but the court granted a stay on the order of 17 December 2001 for a period of three weeks to allow the defendant time to lodge an appeal to the High Court.

16. On 5 January 2003, the plaintiff was served with an application from the defendant seeking an extension of time to appeal the decision of the Circuit Court. On

11 February 2003 the Master of the High Court extended the time for the defendant to appeal the order of 17 December 2001 by a further period of four weeks.

17. On 14 January 2003 the defendant issued a motion in the High Court seeking a stay of the Circuit Court order pending appeal, which was returnable on 27 January 2003. That motion was struck out.

18. On 10 March 2003 a solicitor from the Legal Aid Board came on record on behalf of the original defendant. The defendant's solicitor made an application ex parte on 11 March 2003 seeking substituted service of the notice of appeal, together with a further extension of time to serve the notice of appeal. The court extended the time for the service of the notice of appeal to 13 March 2003.

19. On 12 March 2003, the defendant's solicitor served the notice of appeal on the plaintiff. Thereafter, the defendant took no steps to prosecute his appeal.

20. As already noted, the original defendant died on 10 October 2019. The original plaintiff died on 1 July 2023. No steps were taken by the representatives of the estate of the original defendant to prosecute the appeal during the lifetime of the plaintiff.

21. On 21 November 2023, an order was made substituting the present defendant as defendant in the proceedings. On 19 February 2024, an order was made substituting the present plaintiff as plaintiff in the proceedings.

22. On 31 May 2024, the plaintiff issued the notice of motion herein seeking to strike out the defendant's notice of appeal for want of prosecution and delay.

Submissions of the Parties.

23. Mr Block BL for the plaintiff/respondent, the moving party in this application, submitted that the principles which the court should apply on an application to strike out an appeal for want of prosecution and delay were the same as those that are applied where a defendant is seeking to strike out a plaintiff's action at first instance on grounds of delay: see McGrath v Irish Ispat Limited (in voluntary liquidation) [2006] 3 IR 261.

24. In relation to the principles that should govern this application, it was submitted that the court should apply the principles as laid down by the Supreme Court in Kirwan v Connors [2025] IESC 21. It was submitted that the operative test had been summarised by O'Donnell CJ at para. 26 of his judgment. It was submitted that in the present case there had been gross and inordinate delay by the defendant in prosecuting his appeal. The original defendant, having obtained an extension of time within which to appeal and having served his notice of appeal on the original plaintiff on 12 March 2003, had done nothing to pursue his appeal during his lifetime. It was submitted that no explanation or excuse had been forthcoming for this inactivity on his part.

25. It was submitted that even after his death, his personal representatives had done nothing to prosecute the appeal during the lifetime of the plaintiff, who died on 1 July 2023.

26. It was submitted that the case came at the very extreme end of the spectrum of delay. It was submitted that it clearly came within the test set down in Kirwan v Connors, such that the court should grant the reliefs sought by the plaintiff in his notice of motion.

27. It was submitted that insofar as prejudice to the party who was the victim of the delay arose for consideration at all, the original plaintiff had suffered extreme prejudice in this case, in that she had since died and therefore could not participate in the appeal, if it was permitted to continue. Thus, she had suffered the most extreme prejudice possible. The consequences of which prejudice would have to be borne by the present plaintiff if the appeal were permitted to proceed.

28. It was submitted that this was a case in which the court should put an end to litigation which had become likely, if not certain, to produce an injustice if it was permitted to proceed by virtue of the inordinate delay by the defendant in prosecuting the appeal herein.

29. In response, Ms Cannon BL rested her submission primarily on two grounds, as follows: first, she raised what she called a technical defence that as the original plaintiff had never executed an assent for the vesting of the property in herself under her power as personal representative of the estate of Charles McGovern, that meant that the proceedings for possession of the property as contained in the original equity civil bill had to be seen as proceedings that were brought by the plaintiff in her capacity as personal representative of the estate of Charles McGovern. It was noted that an alternative plea to that effect had been contained in the equity civil bill.

30. It was submitted that as the original plaintiff had died, and as the current plaintiff, who had been substituted in her place in the proceedings, had not taken out any form of grant to the estate of Charles McGovern, this meant that he was not entitled to rely on the judgment granting possession of the property to the original plaintiff. It was submitted that in these circumstances the appeal should be allowed to proceed as the current plaintiff had no standing to rely on the judgment until he obtained a grant of representation to the estate of Charles McGovern; which also meant that he had no locus standi to bring the present application.

31. The second submission put forward by counsel on behalf of the defendant, was that the balance of justice favoured continuation of the proceedings due to the following matters: the original plaintiff had done nothing to have the appeal brought on for a hearing in the period 2003 to 2023 when she died. It was submitted that in considering this application, the court had to have regard both to the inactivity that there had been on the part of the defendant in prosecuting the appeal, and to the inactivity on the part of the plaintiff in having the appeal brought on to a hearing.

32. It was submitted that the court should also have regard to the fact that while the defendant had done nothing to prosecute his appeal, that was understandable due to the fact that he was living in the property until his death.

33. It was submitted that the court should also have regard to the fact that in 2009, the original plaintiff had transferred ownership of the property to her daughter, who was not a party to these proceedings. Separate proceedings had issued in 2023 challenging the validity of that transfer.

34. It was also submitted that the court should have regard to the fact that an independent solicitor had obtained a grant of administration ad litem to the estate of Charles McGovern for the purpose of permitting him to pursue an action against the personal representative of the original plaintiff for damages for breach of duty on the part of the original plaintiff in and about her carrying out of the role of personal representative of the estate of Charles McGovern. Those proceedings had not yet issued.

35. It was submitted that in these circumstances, having regard to the extant proceedings against the daughter of the original plaintiff and the imminent commencement of proceedings against the present plaintiff as personal representative of the original plaintiff; the court should adjourn the present application to await the outcome of those proceedings.

The Law.

36. 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.”

37. This statement of principle was applied by this Court in Denis Guilfoyle Developments Ltd v Wardrop [2025] IEHC 414. The court accepted that under the test laid down in the Kirwan case, a period of inactivity of two years was the inflection point beyond which a party could apply to have proceedings against him struck out for want of prosecution.

38. The court further accepted that when there had been inactivity for a period in excess of four years, the other party was prima facie entitled to an order dismissing the proceedings, particularly where those proceedings would involve the tendering of oral evidence, unless the defaulting party could point to significant circumstances that would make such an outcome unreasonable or unjust: see paragraphs 61–63.

39. The principles laid down by the Supreme Court in the Kirwan case were applied in similar vein by O'Donnell J in Nowak v Chartered Institute of Accountants in Ireland [2025] IEHC 408.

Decision and Conclusions.

40. I accept the submission made by Mr Block BL that when one is dealing with the issue of delay in pursuing an appeal the same principles apply as would apply in an application by a defendant to strike out a plaintiff's action at first instance: see McGrath v Irish Ispat Limited [2006] 3 IR 261. Save that I would add the rider that in the case of an appeal, it has to be recognised that the respondent to the appeal is not a party who merely has a chose in action, but is someone who has obtained a judgment either granting some form of relief (if they are a plaintiff), or an order dismissing the proceedings against them (if they are a defendant).

41. A party who has obtained a judgment, is entitled to rely on that judgment. They should not be denied the benefit of the judgment for a prolonged period while the appellant delays in bringing on his appeal.

42. I hold that when considering delay in the context of an appeal, the test set down in the Kirwan case should be applied with greater stringency. Particularly having regard to the fact that in order to bring an appeal on for hearing in relation to a default judgment, the appellant only has to lodge the required paperwork to get his appeal on for hearing.

43. In the present case, the original defendant had to obtain an extension of time to lodge his appeal. Having done that and having served the notice of appeal on the original plaintiff on 12 March 2003, he did absolutely nothing to prosecute his appeal.

44. No explanation has been forthcoming for this inactivity. Counsel for the defendant suggested that it was understandable that he should do nothing about prosecuting his appeal because he was de facto in occupation of the house. That may well have been true, but it was in breach of the order of the Circuit Court made on 17 December 2001. A defendant cannot rely on the fact that he remained in breach of a court order as an excuse for not prosecuting his appeal.

45. Insofar as it was suggested that the original plaintiff bore some of the blame for the delay in prosecuting the appeal because she did not take any steps to bring on the appeal against the judgment that she had obtained; this is unstateable.

46. The fact that the original plaintiff rested on her judgment and did not take any steps to prosecute the appeal against the judgment that she had obtained, does not constitute acquiescence by her in the defendant’s delay in prosecuting his appeal.

47. Insofar as it was argued that the plaintiff could not bring the within application because he had not obtained a grant of representation to the estate of Charles McGovern deceased; I hold that this submission is without substance. It ignores the fact that the equity civil bill was issued by the original plaintiff in her personal capacity. There was an alternative plea in the civil bill on the basis of the will of Charles McGovern, however the order that was granted was an order in her favour personally.

48. More importantly, the present plaintiff was substituted for the original plaintiff by order of the court dated 19 February 2024. That had the effect of putting him in the shoes of the original plaintiff for the purposes of the action. He took over the role of plaintiff subject to all the benefits and burdens that had been acquired by the original plaintiff up to that point in the litigation.

49. Thus, he had the benefit of the judgment that had been obtained by the original plaintiff on 17 December 2001. He was also subject to the notice of appeal that had been served on her on 12 March 2003. He was entitled to bring the present application because nothing had been done to prosecute that appeal against the original plaintiff, or against him, for over 20 years. The only issue that is before this Court is whether, having regard to that period of delay, the defendant's appeal should be struck out.

50. I am satisfied that applying the test laid down in Kirwan v Connors, the court must accede to the application brought by the plaintiff herein. To permit an appeal to proceed in 2025 when the notice of appeal was served in 2003 and when the original plaintiff, the respondent to the appeal, died in July 2023, would make this litigation a parody of justice.

51. Insofar as it was suggested that this Court should have regard to the transfer of the property by the original plaintiff to her daughter in 2009, which is the subject of separate proceedings that were commenced in 2023; or that it should adjourn this application until some indeterminate date in the future when the independent solicitor acting as administrator ad litem of the estate of Charles McGovern should conclude some proceedings, yet to be commenced, claiming damages for alleged malfeasance or breach of duty on the part of the original plaintiff in her execution of her role as personal representative of the estate of Charles McGovern; is not tenable.

52. This Court will not permit this litigation, which was commenced in 2001, to be maintained in being for some indeterminate period while other litigation is brought to finality. Justice and common-sense demand that there must be an end to litigation. That point has long since been passed in the present case.

53. For the reasons set out in this judgment the Court will strike out the defendant's appeal herein for want of prosecution and delay. The court will grant the reliefs sought by the plaintiff in his notice of motion dated 28 May 2024, which issued on 31 May 2024.