High Court dismisses proceedings against defendants for inordinate delay following Supreme Court Kirwan ruling.

THE HIGH COURT

[2025] IEHC 724

[Record No. 2011/7436P]

BETWEEN

HOMES OF HERITAGE LIMITED

PLAINTIFF

AND

IAN CUNNINGHAM, ELIZABETH BREDIN, SUSAN BREDIN AND OLGA BREDIN

DEFENDANTS

JUDGMENT of Mr Justice Liam Kennedy delivered on 19 December 2025.

1. The second, third and fourth defendants (“the applicants”) have applied for orders dismissing the claim against them for delay. The first defendant is not a party to the motion1. The motion parties agree that the Supreme Court’s recent judgment in Kirwan v Connors & Ors [2025] IESC 21 (Kirwan) now governs the approach to such applications, but disagree as I have disregarded the possibility that, if I grant this application, the plaintiff may continue the proceedings against the first defendant. In that scenario, the latter would presumably bring a similar application to dismiss which would require independent consideration. This motion must be determined on its merits, irrespective of how matters stand between other parties.

to its interpretation and its impact on the law as previously understood on the basis of Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459 (Primor), and subsequent decisions.

2. The applicants say that the claim should be dismissed for inordinate and inexcusable delay, particularly in the 2017 to 2024 period (on top of delay before proceedings commenced). They say that, although they need not show specific prejudice post-Kirwan, they have done so. While acknowledging some delay, the plaintiff seeks to largely defend the prosecution of the proceedings. However, it primarily opposes the application based on its interpretation of Kirwan as requiring an uninterrupted two years’ delay immediately before the issuing of the motion. I consider that the proceedings should be dismissed for reasons set out below.

Legal Principles

3. As the authorities, including those cited by the applicants2, show, recognising their constitutional obligations and the need to comply with Ireland's European Convention on Human Rights obligations, Irish courts have adopted an increasingly unforgiving attitude to delay. Such sentiments are the driving force behind the Supreme Court’s modified approach, reverberating throughout the Kirwan judgments. O’Donnell CJ referred at paragraph 21 - 22 to the “increased appreciation of the fact that delay in and of itself is inimical to the just resolution of disputes” adding that:

“Justice may require that a claim of wrongdoing be advanced and adjudicated upon, but it also demands that it should be resolved within some reasonable timescale by reference to the event the subject matter of the proceedings.”

Such as Granahan t/a CG Roofing and General Builders v Mercury Engineering [2015] IECA 58, Start Mortgages DAC v McNamara [2020] IEHC 187, Cabot Financial (Ireland) Ltd v Heffernan & Ors [2021] IEHC 823, Walsh v Mater Misericordiae University Hospital & Anor [2022] IEHC 126 and McCann v Smurfit [2022] IEHC 300.

4. Kirwan focused, inter alia, on the overlapping jurisdictions invoked by such motions - the inherent jurisdiction to dismiss for inordinate and inexcusable delay in the prosecution of the action (and references in this judgment to the Inherent Jurisdiction are to this aspect of the inherent jurisdiction3) and/or the jurisdiction under Order 122, rule 11 (“Order 122”) of the Rules of the Superior Courts (“RSC”). The applicants invoke both jurisdictions.

5. Order 122 is in the following terms:

“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.”

6. The Supreme Court’s decision in Collins v. Dublin Bus (Unreported, 22 October 1999) (Collins) highlighted the distinction between Order 122 and the Inherent Jurisdiction. Its facts, summarised by Murray J at paragraph 35 of Kirwan, are analogous to this case in key respects. After the High Court dismissed a claim ‘for want of prosecution’ it was argued on appeal that

– despite the eleven-year delay since the alleged events giving rise to the action - the Court could not entertain an Order 122 application because it had not been preceded by two years of The applicants do not seek to invoke a third jurisdiction, the inherent jurisdiction to dismiss claims where - irrespective of responsibility for the delay - a fair trial is impossible or unfair. O’Domhnaill v Merrick [1984] IR 51 (O’Domhnaill) is the seminal authority in that regard. There is no suggestion that O’Domhnaill applies here. References in this judgment to want of prosecution applications will encompass applications pursuant to Order 122 and pursuant to the inherent jurisdiction to dismiss for (culpable) want of prosecution but will not include O’Domhnaill applications.

inactivity as required by that provision. There had been some, albeit minimal and desultory, activity on the plaintiff’s part in the period preceding the application. The Supreme Court dismissed the appeal, considering the motion not under Order 122 but as “a similar but distinct application … to dismiss for reasons of delay – delay which was both inordinate and inexcusable and prejudicial to the Defendants”. It noted that that distinction had been recognised in many cases and that Irish Courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice so required.

7. Butler J summarised the pre-Kirwan position in Campbell v Geraghty [2022] IEHC 241, contrasting the overlapping jurisdictions, noting at paragraphs 17 & 18 that Primor:

"requires the court to consider whether there has been inordinate and inexcusable delay on the part of the plaintiff in prosecuting the proceedings. … If… the court is satisfied that the delay is both inordinate and inexcusable, then it must then consider whether the balance of justice lies in favour of or against the dismissal of the proceedings. The plaintiff bears the onus of establishing that, notwithstanding culpable delay on her part, the balance of justice nonetheless requires that she be permitted to continue her litigation. In Primor, Hamilton CJ set out a number of factors which may be relevant to where the balance of justice might fie. These include

• delay on the part of the defendant;

• whether delay or other conduct on the part of the defendant

amounts to acquiescence in the plaintiffs delay;

• whether the delay is such that it is no longer possible to have a fair trial

• whether serious prejudice has been caused to the defendant. That prejudice is not necessarily limited to prejudice in the defence of the proceedings but in fact that is the only prejudice raised by the defendant in this case.”

8. In Kirwan, while unanimously endorsing the Court of Appeal and High Court’s decisions to dismiss a claim for want of prosecution, the Supreme Court modified the approach to such applications. The events giving rise to the proceedings allegedly occurred in 2005/2006 but (two) proceedings only issued in 2012 and 2013. There was no further activity until August 2018, when a group of defendants (the Buttle defendants) applied to dismiss the 2013 proceedings for want of prosecution. In November 2018, after the plaintiff issued crossmotions, the other defendants, the solicitor defendants, issued a corresponding want of prosecution motion, as outlined in paragraph 3 of O’Donnell CJ’s decision.

9. The Supreme Court determined that the Primor test should be modified in the light of increasing concerns about the detrimental impact on the administration of justice of delays in prosecuting litigation, coupled with concerns as to the complexity and subjectivity of the Primor test. The importance of the issue was reflected in the fact that, having first been heard by a smaller panel, the appeal was re-argued before an expanded panel. O'Donnell CJ and Hogan and Murray JJ (at paragraphs 23, 173 and 53 respectively) agreed that Primor gave insufficient weight to the harmful impact of delay on the interests of justice, suggesting that dismissal for long delay might be warranted even without proof of specific prejudice. At paragraph 152, Hogan J identified the need for a “significantly adjusted” test that was more workable and predictable and less lenient towards plaintiffs to reduce the uncertainty in most applications and to allow them to be resolved efficiently. At paragraph 4, Collins J described the Primor test as "a laundry list of factors, without any real guidance as to how those factors interact or what their relative weighting should be." The Court sought to make the test simpler, less subjective and more focussed on delay, effectively creating a presumption in favour of dismissal in more egregious delay cases, irrespective of specific prejudice. The Court held that, consistent with Order 122, two years of inactivity should be the “benchmark” for dismissal under the Inherent Jurisdiction. Hogan J observed at paragraph 170 that:

"the focus of the law should, I suggest, be more clearly upon the simple lapse of time. That is, in principle, enough to permit dismissal for want of prosecution without showing anything else such as prejudice. Where the delay is appreciably longer than two years - such as four years or more - than one may expect that save for special reasons the action will be dismissed for want of prosecution without the necessity to prove prejudice".

10. Hogan J added at paragraph 173 that the longer the delay the more compelling the plaintiff’s reasons would have to be:

“One might therefore say that the expiry of the two-year period which triggers the application of Ord. 122, r. 11 creates a presumption in favour of dismissal of the action, but that such presumption may be displaced."

11. At paragraphs 24 - 25 O’Donnell J gave short shrift to suggestions that such dismissals interfered with the constitutional right of access to the courts:

“24. … little weight should be given to the idea that the Primor or Order 122 Rule

11 jurisdiction is an interference with a right of access to courts. The derived right of access to courts is a right of access to courts to litigate claims. A system of administration of justice with scarce resources must set rules for the conduct of claims which, if not unreasonably strict or difficult to comply with, are perfectly permissible. The claimant who brings proceedings and does not prosecute them has been afforded full access to the courts to litigate their claim and has not done so....

25. Once it is accepted, as it must be, that the existence of rules on dismissal of a claims for want of prosecution are not themselves an impermissible interference with the right of access to courts to litigate claims, then the application of those rules does not raise any constitutional issue and the Constitution does not require any presumption in favour of the claim or against dismissal”.

12. Murray J (who dissented to the extent that he considered that the Inherent Jurisdiction was supplanted by Order 122) examined Order 122 at paragraph 16: “(i) The provision is concerned with (and only with) procedural inactivity by both parties. So, the taking of steps to advance a case other than through court proceedings does not stop time running under the Rule.

(ii) A defendant who takes a procedural step in the action will thereby lose the entitlement they might otherwise have had to apply to dismiss the case.

(iii) If the two-year period has elapsed, a defendant will always have advance notice before a plaintiff reactivates their case: the plaintiff must serve a notice of intention to proceed one month before they can invoke any court procedure. Such a notice is not itself a step in the proceedings, and thus does not stop time running for the purposes of the provision. Upon being served with such a notice, a defendant then has an option of whether to allow the plaintiff to proceed (in which case the defendant loses the opportunity to apply to dismiss the action for want of prosecution unless the step taken is followed by a further two year period of procedural inactivity), or to proceed to apply to dismiss the claim for want of prosecution.”

13. The majority did not agree that Order 122 supplanted the Inherent Jurisdiction. However, the divergence reduced in practice because the majority’s guidance as to the exercise of the Inherent Jurisdiction broadly aligns with Order 122. O’Donnell CJ noted the “almost total” agreement, as to how the jurisdiction to dismiss for want of prosecution should be exercised (whatever its source), resulting in “a degree of convergence from these different starting points and an end point which, as I understand it, is almost identical”. The majority judgments of O’Donnell CJ and Hogan J endorsed the formulation which Murray J proposed at paras 53 & 54, namely that:

“53. It is not to put too much weight on O. 122 r. 11 to take a lead from the period of time which the legislator has identified as triggering the power to dismiss a claim for want of prosecution. To do so while moderating the requisite level of prejudice by reference to the period of inexcusable delay in the prosecution of an action gives effect to the trajectory of the case law over the past twenty years. First, a plaintiff who has engaged in less than two years of total unexplained delay (as would arise if, on the defendant bringing an application under O. 122 r. 11, it emerges that the plaintiff had in fact been engaged in activity to advance their case other than by the taking of procedural steps) should only find that their claim is dismissed if there is defendant prejudice to the level required to ground an application under the O’Domhnaill jurisdiction. Second, a plaintiff who has engaged in two years total delay should only have their case dismissed if there is a serious or significant prejudice in the form of an unavailability of witnesses or other real evidence that would not have occurred had the action been properly prosecuted. Third, a plaintiff who is responsible for unexplained total delay of twice that should expect less tolerance, and it seems to me to be entirely appropriate that after four years or more of unexplained total delay in the prosecution of a case, the court should dismiss the action if it is dependant on oral evidence so that the defendant is exposed to the risk of failing recollections that inevitably accompanies a lengthy effluxion of time.

54. Beyond that, the courts should be firm in their treatment of the conduct of the dilatory plaintiff… the time has come to allow High Court judges a generous power to dismiss cases in which there has been five years or more of cumulative and unexplained inactivity in a case (including, necessarily, a solid block of two years of complete procedural inactivity)…where delay has been significant (see in particular Quinn v. Faulkner t/a Faulkners’ Garage & Anor [2011] IEHC 103)…if the period of total unexplained delay is greater than five years, the court should feel free to dismiss the proceedings unless satisfied that that there is a pressing exigency of justice that requires that the case be permitted to go to trial…”.

14. Murray J had set the scene for this formulation at para 45:

“Insofar as any aspect of Primor survives it is one that derives from commonsense rather than any analysis in the judgment of the Court: whether it is just to dismiss a case which a plaintiff has failed to prosecute in the manner envisaged by the Rules will always ultimately depend on the relationship between three core variables. These are the total length of time the plaintiff has been inactive (in other words the two years of complete procedural inactivity plus any periods of delay that preceded this), the reason (if any) they have not been proceeding with their case, and the impact on the defendant and the proceedings themselves of the passage of time. That calculation is always going to be case sensitive, and unavoidably, the court must take account of all of the circumstances in properly exercising its discretion. While it is desirable to eliminate as much of the ‘noise’ around these applications as is reasonably possible, the temptation to reduce the applicable test to a mathematical formula must yield to the reality that cases will present themselves in which it will be wrong to dismiss even a claim that has been characterised by the most egregious of delay.”

15. The Chief Justice articulated the new test at paragraph 26:

(i) “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:- until … there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of process or there is prejudice to the defendant to the level required to ground an application under O Domhnaill v Merrick. 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 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 property 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.

(ii) 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 exigency4 of justice that requires that the case be permitted to go to trial…".

16. The Chief Justice stressed at paragraph 27 that the test was not mechanical:

“…it remains a matter for judgement, and it will remain conceivable that individual judges may take different views in borderline cases”.

17. The Chief Justice went on to express that the refinement of the test would permit applications to be decided more speedily and provide a structure for resolving finely balanced applications, before stressing at paragraph 29 the importance of the Courts in retaining “a degree of flexibility” and that they “should remain astute to ensure that justice in its broadest sense should be done.”

None of the examples of exceptional circumstances or “exigencies” enumerated by Murray J or the Chief Justice apply here.

Plaintiff’s Affidavits

18. At the outset, I should note two observations on the affidavits furnished on the plaintiff’s behalf. Firstly, it was sworn by its solicitor, doubtless reflecting his perception of his client’s actions and intentions. However, it would be wrong to simply assume that any solicitor’s understanding, belief or assumptions as to his client’s evolving intentions necessarily mirror his client’s, in this case the plaintiff’s directors (unless, perhaps, he participated in every meeting or discussion at which the directors considered the litigation which has not been suggested and cannot be assumed). No director has sworn an affidavit to explain the plaintiff’s actions and strategy, including why they let the proceedings lie fallow. Given the amounts at stake, it seems unlikely (and would reflect poorly on the directors) if the lethargic approach to the litigation was due to oversight. This begs the question as to why the directors did not issue proceedings earlier and progress them expeditiously. A first-hand account from those charged by law with the governance of the plaintiff’s affairs might have illuminated their position.

19. When I raised this issue, the plaintiff noted that the applicants’ solicitor had also sworn an affidavit and submitted that the plaintiff’s solicitor could likewise depose to the contents of his affidavit. It is correct that, as may sometimes be unavoidable due to exigencies of time, the initial affidavit grounding the motion was sworn by the applicants’ solicitor. However, the third defendant subsequently swore an affidavit which, inter alia, verified the grounding affidavit. No such verification was furnished by the plaintiff.

20. In principle, affidavits should be sworn by the witness who can most appropriately address the issues. Clients should swear their own affidavits. External solicitors are appropriate deponents to address matters within their particular purview – such as, for example, confirming the exchange of inter partes correspondence or the taking of legal steps and the necessity for a particular application such as a request for further and better particulars. However, affidavits dealing with substantive factual issues should generally be furnished by the client or, in this case, a director or manager. This is a basic evidential principle. The need for the correct deponent becomes obvious in the event of a controversy necessitating cross examination. While the affidavit doubtless reflects the solicitor’s understanding, the Court cannot simply assume that it reflects the plaintiff’s. I would have expected affidavits from the parties themselves. A director might have explained the plaintiff’s approach, including why it apparently failed to instruct its solicitor to go to trial years earlier, responding (first-hand) to the suggestion that the plaintiff was happy to let the claim lie fallow since it retained the benefit of the applicants’ monies. No such affidavit was furnished.

21. A further concern is that the affidavit furnished on the plaintiff’s behalf advanced generalised assertions referring to various matters (such as without prejudice communications, internal work on the case and the plaintiff’s engagements with the first defendant) without giving meaningful particulars or exhibiting the documents or correspondence referred to. While details may be limited to preserve privilege, more than mere generalities and assertions is required to satisfy the Court of the reasonableness of what would otherwise appear to be significant periods of delay.

Background

22. The applicants are sisters. The first defendant was their adviser. On his advice, they joined him in two simultaneous transactions with the plaintiff, which led to these and independent proceedings. In one transaction, the four defendants agreed to buy land from the plaintiff for €5,750,000 pursuant to a written agreement dated 13 April 2006. In these proceedings the plaintiff seeks specific performance of that agreement. Separately, the parties entered a standalone indenture under which the defendants lent €500,000 to the plaintiff to be repaid with interest on 13 April 2013 (the "Indenture"). The applicants funded that loan, having originally advanced the monies to the first defendant for other purposes. On 4 April 2025, just before the expiry of the limitation period applicable to instruments under seal, the applicants issued summary summons proceedings to enforce the Indenture and to compel the plaintiff to repay its debt. I will comment further on those proceedings. For now, it suffices to note that the plaintiff should have repaid €820,000 in April 2013, including interest.

The Pleadings

23. The pleadings are commendably succinct, revealing a straightforward dispute. The statement of claim contains twelve paragraphs, half of which identify the parties. The others recount the terms of the 2006 Agreement, the completion notices and extensions, the negotiations, the failure to complete and the fact of a Compulsory Purchase Order (“CPO") instigated by Westmeath County Council (“the Council”) which is considered below.

24. The applicants’ defence contains significant admissions, including as to the Agreement’s existence, terms and non-completion, pleading that the applicants were strangers to the plaintiff’s engagements with the first defendant, and that the plaintiff was itself unready, unwilling and/or unable to perform its obligations. In particular, the applicants denied that the scheme associated with the CPO aided the development of the land or assisted its planned development, asserting that their interest had been adversely affected by the CPO and by the plaintiff’s dealings with the council. They pleaded that the CPO materially prejudiced them, rendering the property substantially different from that which they agreed to buy and that the plaintiff was unable to deliver vacant possession, rendering the Agreement unenforceable. They also pleaded laches, citing pre-commencement delay.

25. There is nothing on the face of the pleadings which would suggest that extensive discovery or other pretrial procedures would be required before proceeding to trial, nor is there any cogent evidence of any such requirement.

Irrelevant or unpleaded issues

26. I disregard controversies between the applicants and the first defendant and issues hinted at but unpleaded as between the parties to this motion. For example, the applicants criticise the first defendant. They have a contribution claim against him. Such issues do not concern me now. The pleadings and affidavits do not allege collusion or that the 2006 agreement was entered into other than on an arm’s length basis. Nor is there any suggestion of a basis to amend the pleaded case. Nor has the first defendant had the opportunity to respond to the affidavits.

Non-completion

27. The undisputed terms of the 2006 Agreement committed the purchasers to buy the property, providing for completion on 3 December 2007. However, the sale never completed. Completion notices were served on 3 January and 6 February 2008 and extended (without prejudice to objections to their validity) to 24 June 2008. In the meantime, the Purchasers proposed that the first defendant alone would buy the property. The plaintiff agreed in principle, reserving its rights against all Purchasers. Perhaps due to the economic climate, the transaction still failed to complete. The plaintiff and the first defendant appear to have exchanged without prejudice correspondence between the latter part of 2008 and 26 March 2010 but it is not clear whether the applicants were privy thereto. On 7 July 2008 the applicants’ solicitors reiterated their clients’ objections to the then applicable completion notice and the proceedings ultimately issued on 16 August 2011.

The CPO

28. As has been noted, on 30 October 2008 the Council served a CPO concerning part of the land. It took possession of the relevant part on 19 May 2009. Compensation has yet to be determined. The plaintiff says that the sale is now subject to and benefits from the CPO and that the CPO scheme facilitates the purchasers’ development. The applicants disagree and say that the plaintiff is now unable to complete the sale as agreed, invalidating the contract.

Delay

29. It is necessary to identify periods of delay and associated explanations. Both parties helpfully adopted a chronology in the plaintiff’s submissions (appended to this judgment).

Pre-Commencement Delay – 24 June 2008 to August 2010 – 26 months

30. Although executed on 13 April 2006, the Agreement provided for completion on 3 December 2007 and (disputed) completion notices were extended to 24 June 2008 by agreement. Accordingly, I would not fault the plaintiff for delay before that date. I am less convinced by explanations for subsequent delays in launching proceedings. At most they partly explain the delay. On 7 July 2008 the applicants’ solicitors wrote to the plaintiff’s solicitors, reiterating their clients’ objections to the extended completion notice. However, proceedings were only issued in August 2011.

Do the without prejudice negotiations reduce the pre-commencement delay to 16 months?

31. The plaintiff submits that it delayed launching proceedings while it sought to negotiate. I agree that parties should not initiate litigation prematurely. However, the exchange of without prejudice correspondence was protracted. Courts will not accept occasional without prejudice correspondence as an excuse for material delay. While the Court should not be informed of the substance of negotiations, the plaintiff has not provided prima facie evidence of serious, reciprocal, sustained engagement sufficient to plausibly explain the delay in launching proceedings. It is not even clear whether the applicants were privy to the correspondence. The deponent’s generalities do not suggest active negotiations with reciprocal engagement and a realistic prospect of short-term success. An unrequited hope of a positive response to without prejudice correspondence cannot justify a plaintiff’s unilateral failure to proceed. Prolonged forbearance may prejudice its ability to pursue a claim or obtain equitable relief. In any event, the correspondence ended on 26 March 2010 but the plaintiff only issued proceedings on 10 August 2011 - even if allowance is made for the correspondence, there was an excessive delay in launching proceedings.

Conclusion – Pre-commencement Delay

32. Accordingly, although issued within the limitation period, the plaintiff delayed commencing proceedings. Perhaps this reflected a pragmatic anticipation of enforcement difficulties. As the economic crisis had eviscerated property markets this appears plausible but it would not render the delay excusable. However, there is no meaningful evidence from the plaintiff as to its rationale, so I make no finding. In any event, it is trite law, recently re-affirmed in Kirwan (see, for example, paragraph 182 of the judgment of Hogan J) that precommencement delay increases the obligation to proceed expeditiously thereafter. The plaintiff should have proceeded expeditiously thereafter, particularly since, as the applicants noted, the claim sought equitable relief (which may be refused due to delay).

The litigation phase

33. Once proceedings finally issued on 10 August 2011, there was sporadic activity until the applicants completed discovery on 20 March 2014. During this period, the plaintiff progressed the litigation, securing the closure of pleadings and the exchange of discovery. The applicants eventually delivered their defence and discovery (after the plaintiff issued motions). The applicants’ pleadings were closed, and discovery was completed by 20 March 2024. From their perspective the claim remained dormant for a decade. Meanwhile, at least initially, the plaintiff progressed the claim against the first defendant who discharged his solicitors and moved to England around this time. Between 2014 and 13 April 2017 it sought discovery from him, which required threats of contempt proceedings.

34. I accept the plaintiff's submission that it was necessary to proceed against the first defendant. All defendants jointly executed the contract and, the plaintiff says, are jointly and severally liable. There would have been no reality to setting the case down for trial against the applicants while discovery from the first defendant was outstanding. Accordingly, although the pace was underwhelming, I would make allowance for the need to obtain discovery from the first defendant after the applicants furnished theirs on 20 March 2014. That need not have taken two years. However, there was at least some activity, and the plaintiff would plausibly say that the delays were primarily the first defendant’s responsibility. Accordingly, I would not criticise the plaintiff unduly for the period from the 10 August 2011 launch of the proceedings until the first defendant made further and better discovery on 13 April 2016, although the plaintiff should have updated the applicants’ solicitors during extended periods in which activity solely concerned the other defendant.

35. Efforts to extract further discovery from the first defendant were exhausted by April 2016 (although communications with him continued until early 2017). The proceedings then remained dormant from April 2016 until early 2024. This period concerns me most.

2019 Notice of Intention to Proceed

36. For completeness, I disregard the service in 2019 of a notice of intention to proceed. It was not a harbinger of activity. Since nothing followed from it and it does not constitute a step in the proceedings, its main relevance is to highlight the plaintiff’s awareness of the mandatory step which it ignored when it sought to resurrect the claim in 2024.

Freedom of Information Act (FoI) requests

37. The plaintiff also seeks to justify its post discovery delay on the basis that it pursued a FOI request in relation to the CPO issue. This assertion is vague and unsupported by exhibits

– the evidence is insufficiently concrete to satisfy me as to the need for such a request, let alone the time required. Nor is there any suggestion that the applicants were informed at the time of the need for such an application. Although the CPO issue may have sparked the FOI request, it is difficult to see how it can possibly justify a material delay since, as the plaintiff’s submissions note, the implications and consequences of the CPO are essentially legal issues. I am not satisfied as to the need for the FOI request or that it would significantly move the dial on the delay. In any event, the Council furnished the FOI documents on 17 July 2017. Even if the request was required it could not explain the subsequent seven years’ delay. No plausible explanation has been advanced to justify the later period. The plaintiff's solicitor’s affidavit does not satisfy me that that request necessitated or explained the delay in the litigation to any meaningful extent; certainly, it could not explain the delay after 17 July 2017.

The Plaintiff’s “Background Activity” and “Updated Advices” from Counsel Although there seem to be disparities or uncertainties about some dates in its solicitor’s affidavit, the plaintiff accepted that it delayed after October 2017 (when the FOI process was concluded) but asserted vaguely that "work was continuing in the background". The plaintiff’s solicitor’s affidavit also states that counsel was briefed with updated documentation (presumably both discovery and FOI documents) “with a view to setting the matter down for trial”. He does not disclose the date of the briefing - presumably after 17 July 2017 but he also refers to obtaining “updated advices” from senior counsel on 19 May 2020, which may or may not be the same occasion. Their import is not explained – it is unclear whether (or when) counsel advised the matter was ready for hearing or, if not, what remained to be done and why it was not progressed. Presumably, the opinion would have advised that the case could be set down, but the plaintiff has not confirmed that this was so, nor why it did not happen. In any event, the Court is primarily concerned with inter partes activity in the litigation, attaching less weight to background activity on either side which was unbeknownst to the other and the import of which has not been disclosed.

38. As appears from the judgments of Hogan and Murray JJ at paragraphs 156 and 47 in Kirwan, and the judgment of Barr J at paragraph 74 of Guilfoyle, work may be required to progress a case (such as gathering factual or expert evidence) which does not constitute a “step”

in the proceedings but which might refute the suggestion that particular delay was culpable 5. For example, it may sometimes be necessary to pause proceedings while factual or expert testimony is gathered or analysed. Prudent plaintiffs will inform defendants if steps need to be taken before progressing the claim (not only out of courtesy, although that would be a sufficient reason of itself, but also to protect themselves from to reduce the risk of dismissal applications). This was not done. While the substance of any such engagement is privileged, if the plaintiff wants to rely on work internal to it and its advisors then it should at least give some sense as to what was done and when (at least with the level of detail in the chronology proffered in paragraph 11 of Dennis Guilfoyle Developments Limited v Wardrop [2025] IEHC 414 (Guilfoyle)). He should explain the output of the briefing of counsel and why no step was taken in the proceedings until June 2024. The plaintiff’s generalised assertions as to internal work contrast with the greater detail that appears to have been forthcoming in Guilfoyle (but which was still found wanting in that case).

39. Given the straightforward nature of the claim, I am disinclined to credit purely internal activity on the plaintiff’s part in this case, activity unbeknownst to the other parties at the time. Lacking concrete particulars, the generalised reference in this case to background work and to briefing counsel once or, perhaps, twice, is a mere assertion which does not plausibly explain the extraordinary delay.

Murray J noted at paragraph 47 that “Order 122 r. 11 is concerned exclusively with procedural steps. A plaintiff can be prosecuting their action without taking procedural steps in the case: by corresponding with the defendants, considering discovery, taking legal advice, seeking to identify witnesses of fact or experts, liaising with those witnesses, taking a reasonable time to await compliance by the defendant with obligations imposed on it by the Rules or Court Order, and the like. Obviously, a plaintiff who is engaged in the foregoing falls to be treated differently from a plaintiff who both allows two years to pass without taking any action in the case, and who is doing nothing else whatsoever to advance their claim.

Covid

40. I do not accept that Covid explains the delay. While acknowledging delays between counsel’s updated advice on 19 May 2020 and in 2024 the plaintiff’s solicitor says "Covid played a large part, both in the disruption of dates, court activity and the operation of the office." This excuse tends to be trotted out in any want of prosecution application in which the delay spanned the pandemic, but it often lacks credibility when, as here, the delays had nothing to do with Covid. The affidavit asserted that, due to Covid, no action "could be taken at that time until the court service reopened fully." This was not strenuously pressed in submissions and does not withstand scrutiny. While it was not possible to obtain live hearings during lockdown, the courts and the legal profession both adapted to the pandemic, scheduling remote hearings. Most law offices were operational to a greater or lesser degree during lockdown. Government regulations permitted law firms to continue to operate. The plaintiff could and should have been corresponding with the defendants. It could have progressed the case even during Covid by setting the matter down with a view to securing a hearing date as soon as possible thereafter. However, no court date was sought, nor were pending motions or other steps in these proceedings disrupted or suspended. In any event, Covid could not explain extended delay until June 2024. The slow pace of this litigation cannot be attributed to Covid.

When could the case have been progressed to trial?

41. Given the elementary nature of the pleaded issues, the case could have been set down for hearing once discovery completed (if discovery was even required). There was scant need for protracted fact gathering or pretrial perambulations to resolve the pleaded issues. Even if allowance is made for the FOI request, the plaintiff has not satisfactorily explained the delay until 10 June 2024 after the FOI documents were supplied on 17 July 2017.

“Steps” taken from January 2024 until the 10 June 2024 Notice of Intention to Proceed

42. I have discounted “steps” which the plaintiff purported to take in early 2024 in contravention of Order 122, which requires litigants to file a notice of intention to proceed before taking any step in the proceedings which have been inactive for at least a year. That is an important requirement designed to protect parties from being unfairly ambushed by long dormant claims, such as this one. Murray J explained the obligation at, inter alia, paragraph 16

(ii) of his judgment in Kirwan. This litigation had been inactive for seven or eight years, depending on which party’s perspective is adopted so the RSC required such a notice.

43. After years of silence and inactivity, the plaintiff purported to serve notice of trial on 3 January 2024 without prior communication with the applicants. It ignored the obligation to serve a notice of intention to proceed before taking such steps. This is remarkable since the case had been dormant for approximately eight years. The plaintiff appreciated its obligation to serve a notice of intention to proceed (having done so in 2019, after a shorter delay).

44. Even apart from the requirement, basic professional courtesy should have led the plaintiff’s solicitor to telephone or write to the applicants’ solicitors to inform them that his client had instructed him to proceed with the action and he would be setting the matter down at the first opportunity. Any such an enquiry would presumably have elicited the fact that the applicants’ solicitor had retired, in which case I expect that the plaintiff’s solicitor would have allowed the applicants a reasonable period of grace in order to allow a new solicitor to locate the file, presumably retrieving it from archives, familiarising themselves with its contents, taking instructions from the three individual clients and instructing counsel as appropriate. No such courtesy was extended. Nor were the requirements of Order 122 met.

45. The purported January 2024 service of a notice of trial and the setting down of the case and other steps taken in early 2024 were contrary to the letter and spirit of the RSC. Although it had previously asserted a different position, in oral submissions the plaintiff accepted (rightly in my view) that it could not rely on actions taken in breach of the RSC. Accordingly, although the plaintiff’s solicitor criticised the applicants for failing to respond to correspondence and “steps” in early 2024, his criticisms were misplaced – the plaintiff itself was at fault until the notice of intention to proceed was served.

Conclusions - Delay

46. The plaintiff’s admission of delay from the receipt of counsel’s advices on 19 May 2020 until 2024 understates the position. I consider that the delay between completion of discovery in April 2016 and the service of a notice of intention to proceed on 10 June 2024 was inordinate and inexcusable. Leaving aside the deponent, the affidavit sworn on the plaintiff’s behalf fails to satisfactorily explain the delays from 2017 until early 2024. There was an inordinate delay between the first defendant’s further and better discovery on 13 April 2016 and the resurrection of the proceedings on 10 June 2024 when the plaintiff served a notice of intention to proceed and then sought to take steps on foot of that notice. The FOI process, which was completed in July 2017, the 2019 notice of intention to proceed, the 2020 advices from counsel and the impact of Covid do not justify the ongoing delay. In the absence of a satisfactory explanation from the plaintiff, that delay was inordinate and inexcusable in its own right (and even more so in the light of the pre-commencement delay).

Prejudice

47. The majority in Kirwan emphasised that delays in litigation were unjust and contrary to public policy. The decision made it easier to secure dismissal in cases of long delay (such as this one) at least if they depend to a material degree on witness testimony. It is not necessary in such cases to show specific prejudice (reflecting the awareness of the inherent general prejudice in such contexts).

48. In this case, while submitting that they were not required to do so, the applicants did cite instances of prejudice. I agree with the plaintiff’s submission that, while unfortunate, several examples of prejudice identified by the applicant arguably arose, at least to some degree, independently of the delay. These include the stressful and burdensome nature of the litigation and the health and financial issues affecting several of the applicants. Even if particular prejudice would have arisen irrespective of any delay on the plaintiff’s part, such prejudice may still be relevant if it was exacerbated by extended delay. For example, the applicants were exposed to stress and the hazards of litigation for longer than should have been the case (similar to the Primor scenario in which O’Flaherty J noted that a “serious consequence of the adverse publicity was that the firm found it impossible to obtain any professional indemnity insurance except at prohibitive premium rates, a situation which continued for six years. The threat of these proceedings prevented any possible expansion or development of the practice. An opportunity to amalgamate with a substantial firm was missed solely because of the outstanding proceedings in this case.” While I would not discount such prejudice entirely, I would give greater weight to the inherent difficulties which inevitably increase with bringing stale cases to trial.

49. There is some force in the plaintiff’s submission that this case is less dependent on oral evidence than some actions would be. The plaintiff seeks specific performance of an undisputed contract. The defence focuses on: (i) the effect of the CPO on the ability to complete and the validity of the agreement; (ii) whether the plaintiff itself was in a position to complete in 2008 and thus entitled to compel completion by the applicants and the applicants’ alleged lack of awareness of the first defendant’s failure to complete (to the extent that such awareness is material); (iii) delay. Expert rather than factual evidence and legal submission may determine some of those issues. Although the third defendant’s affidavit says that she cannot even remember signing the 2006 agreement, her defence does not deny doing so, and the existence of the 2006 contract is undisputed, so the applicants have suffered no prejudice over that issue.

50. The applicants countered that the plaintiff's own certificate of readiness showed that this is not just a documents case. The certificate anticipated four days of evidence and a fiveday trial, with the plaintiff calling six factual witnesses and one expert. I anticipate that the applicants would require factual and expert testimony, even leaving aside issues between it and the first defendant. Such oral testimony on both sides could go to several pleaded issues. While proof of specific prejudice is not required, I am satisfied that the delay will have impacted the applicants’ ability to adduce oral testimony or to pursue other trial and pre-trial strategies. The time elapsed will also render it harder for the applicants to challenge the plaintiff’s case.

Applicants’ Solicitor’s retirement

51. The applicants pointed to their original solicitor’s retirement. I accept the plaintiff’s submission that changes to legal teams (common enough in long running litigation) rarely constitute prejudice justifying dismissal. However, prejudice becomes more significant if coupled with lengthy delay as in this case. The retirement also goes to the reasonableness of the time taken by the applicants to respond to June 2024 developments.

Impact on Applicants’ ability to seek recourse against the First Defendant

52. I was unpersuaded by complaint that the delay prejudiced the applicants’ ability to seek recourse from the first defendant. The applicants could have pursued him more vigorously. More pragmatically, there is no evidence to suggest that there was ever much hope of recovery from him. The litigation followed the first defendant’s protracted failure to complete the purchase at a time at which the markets were under huge financial stress. In the circumstances (including his discharge of his solicitors and his departure from the jurisdiction) it is not evident that he was ever a mark for damages.

The Indenture

53. The applicants’ outstanding loan to the plaintiff is a factor in the balance of justice assessment, as is the latter’s failure to repay €820,000 in April 2013 as it promised. The plaintiff’s unlawful retention of those funds for many years is relevant. The plaintiff submitted that the applicants’ recent launch of summary proceedings to enforce the Indenture was inconsistent with this application. However, those proceedings were issued just before the expiration of the limitation period, which, as is noted above, is permissible subject to the obligation to proceed with diligence thereafter. The plaintiff said that it would be unfair to dismiss these proceedings, leaving it exposed to the applicants’ summary proceedings, but this point was resolved when, at the outset of the hearing, the applicants’ counsel offered an unprompted (save perhaps by the recent decision of Barr J in similar circumstances in Guilfoyle) undertaking that, if these proceedings were dismissed, the applicants would discontinue the summary proceedings based on the Indenture, releasing the charge.

Time to trial

54. Another factor in the exercise of any discretion is the time required to go to trial. The applicants’ solicitors’ affidavit outlined steps required before the proceedings were ready for trial (which were not seriously contested by the plaintiff) and submitted that it could well be 2026 or 2027 before the proceedings went to trial if they did progress. In view of past experience and the first defendant's location outside the jurisdiction, it might well be later.

Submissions

55. The plaintiff submitted that Kirwan radically altered the criteria for want of prosecution motions, substituting a relatively rigid regime based on Order 122, and a test of total inactivity based on gradated timelines and, crucially, rendering a minimum two years’ total inactivity immediately preceding the motion as an essential prerequisite. Order 122 provides for the bringing of a want of prosecution motion “in any cause or matter in which there has been no proceeding for two years from the last proceeding had” and the plaintiff argued that, post- Kirwan, this requirement applies to all want of prosecution applications whether brought under Order 122 or pursuant to the inherent jurisdiction. In oral submissions it acknowledged that it could not rely on activity predating the service of a notice of intention to proceed on 10 June 2024, but it did rely on steps taken between that date and the issuing of this motion on 28 November 2024. During that period the plaintiff wrote to the applicants’ solicitors on 17 July 2024 pursuant to High Court Practice Direction HC 127 enclosing a partially completed Trial Summary form listing witnesses for the hearing and estimating the trial duration. Because the applicants’ solicitors failed to add detail of, inter alia, the applicants’ witnesses within four weeks in accordance with the practice direction (or to respond to subsequent correspondence), the plaintiff issued a motion to compel compliance with the practice direction and to secure a hearing date. It submitted that those steps precluded a want of prosecution application because there had not been at least two years’ complete inactivity immediately before the motion issued which, it submitted, was a precondition to dismissal either under Order 122 or the inherent jurisdiction.

56. This was the primary basis for the plaintiff’s opposition to the application - that it was not open to the applicants to issue the motion on 28 November 2024 since there had not been a period of total inactivity for two years immediately preceding the issuing of the motion. While the motion may have been unanswerable if issued on 9 June 2024, the slate was wiped once the plaintiff took steps thereafter. Absent a further uninterrupted delay of two years or more, it was no longer possible to seek dismissal for want of prosecution.

57. The plaintiff agreed with my observation that this submission would imply that a plaintiff’s solicitor could put in place a recurring calendar reminder to ensure that they generated a token step in the litigation at least once every two years, thus ensuring that a want of prosecution application could never be brought, although it noted that the Court would still retain the O’Domhnaill jurisdiction in cases where a fair trial was impossible and the inherent jurisdiction could also be invoked to address abuses of process.

58. The applicants rejected the plaintiff’s interpretation of Kirwan, citing Collins as authority for the proposition that the inherent jurisdiction was not confined to Order 122 and could be invoked even in the absence of an unpunctured period of at least two years’ delay immediately before the motion was issued. In response to the plaintiff’s rejoinder that Collins, along with other pre-Kirwan authorities, must be treated as suspect because, it said, Kirwan “took a chainsaw to the previous jurisprudence”, the applicants noted the reliance on Collins by Hogan and Collins JJ, suggesting the continued endorsement of that decision by the Supreme Court majority in Kirwan.

Analysis

Impact of Kirwan on earlier jurisprudence

59. Generally, the Supreme Court tends to wield a scalpel rather than a chainsaw, but there is some force in the plaintiff's contention that the Kirwan judgments went beyond its usual surgical approach. Collins J was of this view, speaking of Primor’s “demise”, although he did not suggest that all associated decisions were also all reversed. I agree that the Supreme Court’s recent decision redefined the circumstances in which cases may be dismissed for delay under either jurisdiction. To that extent, the Primor test has been revised (to use the language preferred by the minority). However, the judgments as a whole do not reveal any intention to reverse all pre-existing authorities except in specific respects. While some earlier decisions may need to be reassessed, I would not go so far as the plaintiff’s submission that they should all be regarded as “suspect”. Many undoubtedly remain in full force. The Supreme Court

decision identified the particular aspects of Primor which required revision without overruling it in its totality, let alone doing so to all other authorities. Accordingly, while the Primor test has evolved and earlier decisions must be read in that light, it would be going too far to suggest that all earlier decisions are suspect.

“Cleaning the Slate”

60. The plaintiff’s submission would, on its face, suggest that, irrespective of the delay in the proceedings and the resulting prejudice (short of O’Domhnaill situations), the Court could never dismiss for want of prosecution either under Order 122 or the inherent jurisdiction if, after years of delay, the plaintiff took a solitary step just before the motion was issued. Such an approach would incentivise a dash to the Courthouse and form over substance rather than looking to the justice of the situation. This would appear difficult to reconcile with the sentiments of Kirwan.

61. Nevertheless, at first glance, various references in Kirwan, including the passages cited above, offer some support for the submission that a want of prosecution motion can only be maintained where a period of two years delay precedes the application. Although only Murray J considered that Order 122 supplanted the inherent jurisdiction, the Court evidently accepted the need for more objective criteria to guide the exercise of the inherent jurisdiction and the period specified in Order 122 was identified as a logical starting point. This approach at least partially addressed the concern identified by Murray J that the inherent jurisdiction gave the Courts a broad, unpredictable discretion to grant relief (dismissal for want of prosecution) despite the fact that such relief may not be available pursuant to Order 122, the provision of the RSC designed to address that issue.

62. Examples of comments within the judgments which might support such a conclusion include, O’Donnell CJ’s repeated use of phrases such as “total inactivity” or “complete inactivity”, including his reference at paragraph 26 to two years of “total inactivity” as a “critical milestone” and his express endorsement of paragraphs 53 and 54 of Murray J’s judgment, cited above. In paragraph 54 Murray J had suggested that judges should have “a generous power to dismiss cases in which there has been five years or more of cumulative and unexplained inactivity in a case (including, necessarily, a solid block of two years of complete procedural inactivity)”.

63. Likewise, Hogan J’s judgment suggests at paragraph 176 that the plaintiff’s inactivity is measurable by reference to the two year “starting point” in Order 122. At paragraph 15, Murray J referred to the two-year period specified in Order 122 as a “benchmark”. Hogan J noted it as a crucial “inflexion point” for the exercise of the inherent jurisdiction (paragraph 178) and as “the starting point for all future applications of this kind” (paragraph 176).

64. However, that is not the end of the story. Firstly, at paragraph 38, Murray J added an important proviso to his own suggestion that the power to dismiss could only be exercised in the event of two years of inactivity:

“unless such activity as can be shown to have occurred was merely a manipulation of the court process, and thus an abuse of it”. Murray J’s qualification suggests a recognition that the inherent jurisdiction could and should still be invoked in at least some circumstances outside those provided for in Order 122. Likewise, at paragraph 26 O’Donnell CJ acknowledged the possibility of such applications where there had been less than two years’ inactivity “if the claim is an abuse of process or there is prejudice to the defendant to the level required to ground an application under O Domhnaill v Merrick”. The majority emphatically dismissed the suggestion that the circumstances in which the Court could invoke the inherent jurisdiction to dismiss for want of prosecution were confined to Order 122, to the exclusion of the inherent jurisdiction. At paragraph 13 O’Donnell CJ stated that the provision “cannot be seen as occupying the field and expelling the inherent jurisdiction”. Collins J also rejected the suggestion that order 122 can be regarded as a "comprehensive code", noting at paragraph 44 the language of the rule is permissive rather than exclusive and adding that: “If Order 122, Rule 11 were to be read as replacing the inherent power of the High Court to dismiss a claim on grounds of delay/want of prosecution, thus altogether excluding the Court’s power to dismiss unless there is a continuous 2-year period without a “proceeding”, its vires might come into question. However, for the reasons set out above, and the further reasons set out by Hogan J in his judgment (and the additional reasons set out in the Northern Irish decisions to which he refers), that does not appear to me to be the position here. In my view, Order 122, Rule 11 does not have the effect of excluding the courts’ power to dismiss proceedings in circumstances other than those set out in Rule 11, even if, in practice, such circumstances are likely to be rare”.

65. Furthermore, while endorsing the focus on Order 122, at paragraph 176, Hogan J echoed O’Donnell CJ in expressly rejecting the suggestion that proceedings can only be struck out for delay if two years have elapsed without any proceeding:

“There might well be, for example, instances of where a litigant had effectively manipulated the two-year rule by the strategic filing of a proceeding just as a particular two-year period was about to end. There also examples of where the courts have struck out proceedings pursuant to the inherent jurisdiction of the court where there has been a flurry of activity by a plaintiff after the two-year period expired but before the defendant could issue the requisite strike out motion: see, e.g, Collins v. Bus Átha Cliath [1999] IESC 69. Other special and exceptional examples may well present themselves as well in future cases. In general, however, the question of inordinate delay should be measured against the time period stipulated by Ord. 122, r. 11. 177.”

66. Such comments seem to me to be dispositive of the plaintiff’s primary submission since that submission cannot be reconciled with the Supreme Court’s decision in Collins (referenced at paragraph 6 above). I note that in Kirwan Murray J advocated that Collins should be overruled or distinguished as one of the early cases in which the courts did not clearly distinguish between the Primor jurisdiction (to dismiss for culpable delay) and O’Domhnaill jurisdiction (where a fair trial was impossible). At paragraph 37, he suggested that Collins “does not outrule the finding that the jurisdiction to dismiss for want of prosecution should be viewed as being rooted in the Rules to the exclusion of the inherent power and if Primor is to be over-ruled, Collins falls by the same sword”.

67. I do not agree that all pre-Kirwan decisions, in particular Collins, must be seen as suspect. That would be at odds with Hogan J’s detailed review of the authorities and with Murray J’s exhortation that Courts should “follow the trail” left by such decisions, Primor included. While Murray and Collins JJ used more robust language, Hogan J and O’Donnell CJ repeatedly spoke of Kirwan as a modification, revision or adjustment of the rule in Primor. It seems to me that the majority’s consensus clearly envisaged the retention of the Primor jurisprudence save as expressly stipulated (as was the case in relation to prejudice). The other members of the Court rejected the premise that the jurisdiction was confined to Order 122 to the exclusion of the inherent jurisdiction; it follows that they did not endorse the associated argument that, in tandem with any such finding, Collins (as well as Primor) should be overruled. The foregoing remarks of Hogan J confirm that Collins remains authority for the proposition that relief can still be granted post-Kirwan in circumstances in which the Order 122 criteria are not met. Accordingly, Collins (and other decisions) remains good law save to the extent that they are inconsistent with Kirwan. If that were not the case, there would be little point in retaining the inherent jurisdiction.

68. Collins J also expressly rejected the attempt to distinguish the decision which happens to bear his name. In a footnote to paragraph 16 he stated that:

“In Collins the High Court had made an order dismissing the action pursuant to Order 122, Rule 11. It had no jurisdiction to do so because proceedings had been taken in the two years prior to the application. But, in this Court’s view, that affected only the form of the order as opposed to the substance of the High Court decision. There was a “similar but distinct” jurisdiction to “dismiss for reasons of delay - delay which was both inordinate and inexcusable and prejudicial to the Defendants” (per Murphy J, at 6). That language (which is repeated at the end of the judgment) plainly refers to the Primor jurisdiction…. So Collins has a two-fold significance. It is, firstly, authority for the continued availability of an inherent power to dismiss notwithstanding the provisions of Order 122, Rule 11 and, secondly, it indicates that, differences in the jurisdictional threshold aside, the inherent power and the power under the Rules fall to be exercised on a similar basis i.e. prejudice is an essential ingredient of both.”

69. Accordingly, Collins remains good law, which undermines the submission that a want of prosecution application can only be entertained if at least two years of complete inactivity immediately precedes it.

70. It should also be noticed that although he envisaged a two-year period prior to the issuing of the application) on several occasions, Murray J also emphasised at paragraph 46 that the total inactivity since the start of proceedings was the key factor for the Court. It seems to me that, in view of the policy considerations emphasised by the majority, the total inactivity must be more significant than the period immediately preceding the issuing of the motion in determining the exercise of the inherent jurisdiction to dismiss for want of prosecution.

71. The plaintiff’s submission appears difficult to reconcile with Murray J’s comments at para. 47 (ii) that:

“One occasionally sees judges dealing with these applications being presented with the prospect of isolating and then adding together relatively short periods of time to identify aggregate delays. This is a waste of resources. The focus is upon whether the case is, as a whole, being prosecuted. The court should be concerned only with a conspectus examination of relatively substantial periods in which nothing is being done to move the case along – chunks of inactivity of less than six months should usually be ignored…” Such comments across the judgements suggest that the Supreme Court consensus was to have regard to the totality of the delay since the events giving rise to the proceedings, which, in this case, would make it difficult to avoid dismissing the proceedings.

72. The warnings of O’Donnell CJ and Hogan J that the test should not be applied mechanically are also difficult to reconcile with the plaintiff’s submission. As Hogan J observed at paragraph 141, a century of Supreme Court jurisprudence revealed:

"a broad miscellany of cases and heterogeneous instances of where the inherent jurisdiction was invoked where this was considered necessary to fulfil the courts constitutional task of administering justice" Hogan J added at paragraph 145 that while many of the examples of the exercise of the inherent jurisdiction which he had surveyed were heterogeneous:

"they may all nevertheless be said to indicate the existence of a general inherent jurisdiction where this is necessary to make the administration of justice effective or to conserve and protected against possible abuse. This is relevant to the general question of whether there is an inherent jurisdiction strike out for undue delay. As I have indicated elsewhere in this judgement, the jurisdiction strike out on grounds of delay serves the court’s fundamental duty to preserve and conserve the administration of justice with which they have been vested by Article 34.1. Part of that duty is to protect the process of the court from abuse”.

73. I should also note that the plaintiff’s interpretation proposed seems inconsistent with the actual result in various decisions: a. in Kirwan itself, although the precise detail is not entirely clear, it seems from the judgments that, unlike the first group of defendants, the solicitor defendants only issued their dismissal motion after, following long delays, the plaintiff had taken steps in the proceedings (the issuance of cross-motions). That may also have been the reason that those defendants successfully invoked the slip rule to correct the High Court order to make clear that the claim was being dismissed pursuant to the inherent jurisdiction. As Hogan J observed at paragraph 43, Meenan J noted that he was relying on Primor and the inherent jurisdiction to dismiss the proceedings for inordinate and inexcusable delay. However, there was no suggestion in the Supreme Court judgments that that the solicitor defendants’ application was precluded by virtue of them apparently having been pre-empted by the plaintiff. b. In Primor, following a two-year period of inactivity, the plaintiff’s solicitors informed the defendants that they were nearing completion of their affidavit discovery and enquired about the exchange of affidavits with the defendants’ solicitors. It was in response to those developments, arguably interrupting the required period of inactivity, that the defendants served their application to dismiss for want of prosecution (page 479 of Hamilton CJ’s decision). c. In Anglo Irish Beef Processors v Montgomery [2002] 3 IR 510, which Hogan J cited at paragraphs 103 – 104 of his judgment in Kirwan, the Supreme Court upheld the dismissal for want of prosecution where the motion had apparently been prompted by a step taken by the plaintiff (who brought an application to amend their pleadings after the case had been largely dormant for almost seven years). There was no suggestion by that Court (or in Kirwan) that the application was precluded by the fact that the plaintiff had taken a step in the two-year period preceding the issuing of the motion. d. The same issue arose in Guilfoyle. The plaintiff notes that the issue was not argued in that decision. However, it would presumably have been raised if either the plaintiff or the Court had identified it as a point of substance in the light of Kirwan.

74. Accordingly, I consider that the plaintiff’s submission appears inconsistent with the approach adopted in pre-Kirwan decisions such as Primor, AIBP v Montgomery and, post- Kirwan, in Guilfoyle. If, as the plaintiff contends, two years total inactivity immediately before the bringing of an application was an essential prerequisite, then it would follow that those decisions were wrongly decided but there was no suggestion to that effect in Kirwan in respect of the decisions predating it.

75. The essence of the plaintiff's submission on this point is that a period of two years complete and total delay immediately before the bringing of the want of prosecution motion is effectively a precondition or prerequisite, but the Kirwan judgements avoided putting the matter in such stark terms. They never used either of those two terms or similar synonyms to suggest a rigid threshold. While Murray J’s formulation at paragraphs 45 and 54 envisaged that an application would be grounded, inter alia, on “necessarily, a solid block of two years of complete procedural inactivity”, his comments at paragraph 38, cited at paragraph 64 above, showed that this was not an inflexible requirement, as do those of Hogan J, speaking for the majority, at paragraph 176, cited at paragraph 65 above.

76. Instead, O’Donnell CJ and Hogan J consistently described the two-year period in softer terminology, characterising it as a “starting point”, a “milestone”, an “inflection point” and a “benchmark”. If the Supreme Court had intended to propose a rigid, binary requirement then their terminology would have reflected that intention. Instead, the Court adopted more malleable terms like “inflection point”. It seems to me to that such softer language implicitly complements the judges’ repeated observation that each case must be judged on its facts and that, O'Donnell CJ's stricture at paragraph 29, as to the importance of the courts retaining flexibility and remaining astute to ensuring that justice in its broadest sense is done, is followed.

The Applicants’ Conduct

77. The plaintiff criticised the applicants for not progressing the litigation over the years. That criticism ignores the fact that the courts have repeatedly noted that the carriage of litigation rests with the plaintiff. While defendants may choose to take more robust attitudes, they need not do so. There may be little incentive for them. Even if vindicated at trial and the plaintiff is able to pay costs, the defendant will typically be out of pocket as costs awards usually fall short of an indemnity. O’Donnell CJ summed up the opinion of all members of the Court (save for Collins J) in Kirwan observing at paragraph 14 that:

“The courts must hold the scales equally between the plaintiff and the defendant, but that does not mean that they are to be treated as the same when they are not. In particular, they are not co-adventurers in litigation with the same interest in bringing it to conclusion. The essential structure of proceedings involves a plaintiff invoking the jurisdiction of the court to summon the defendant requiring them to answer a claim. In my view, 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 they were in prior to the commencement of those proceedings. Furthermore, it is a well-known feature of litigation, that many more actions are commenced than proceeded with. Litigation is an expensive activity, and not just in financial terms. There are many reasons why a plaintiff may commence proceedings but not proceed with them. I think a defendant is not required to spend time, energy and resources on a claim which may never be heard and 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. In this regard I agree with the passage from the judgment of Butler J. in Campbell v Geraghty [2022] IEHC 241 set out at paragraph 51 of the judgment of Murray J.”

78. In the following paragraph the Chief Justice noted the possibility of cases going “beyond silence and/or inactivity” reaching the level of acquiescence by the defendant in the delay, or indeed positive encouragement to the plaintiff to refrain from prosecuting a claim. The evidence does not suggest that any such issue arises here.

79. There is greater force (and considerable irony) to the objection that the applicants should have issued this application sooner than 28 November 2024 following the service of a notice of intention to proceed on 10 June 2024. I agree that, as appears from the observations of Murray J at paragraph 25 of Kirwan, when such a notice of intention to proceed is served in a dormant case, prudent defendants and their legal advisors must move promptly, deciding whether to seek dismissal or to allow the case to proceed, in which case they forfeit the right to take the point (unless there are further subsequent delays).

80. A moment’s reflection would reveal that it would be unfair to expect a defendant to react immediately after proceedings have been dormant for many years. Both the client and its advisors are likely to have “moved on” over the years. A great deal of effort may be required: a. The defendant’s solicitors must assess the situation, retrieving, dusting down and reviewing the file, to remind themselves how matters stood in the dormant action.

b. Often, as in this case, those originally dealing with the matter will have retired or changed firm, so a new team will need to get up to speed and to assess the situation, which is more challenging than would be the case for the original team. c. The solicitors must reach out to the client, introducing or reintroducing themselves, explaining the development and its implications and seeking instructions. d. Counsel may well need to be instructed and the passage of time will typically dictate the need to engage fresh counsel. Even if the original counsel remain available they will effectively need to be fully briefed on all developments since the events giving rise to the proceedings (eighteen years earlier in this instance). e. The defendant’s solicitors will be subject to a statutory obligation to update their client on anticipated costs before incurring significant fees. The client will need to make appropriate funding arrangements. This may delay matters as, even apart from the fact that many clients will be understandably reluctant to invest in the defence of a claim that they may have thought had gone away many years before, they may need time to fund such involuntary, unexpected and unwelcome expenditure. This may be a serious obstacle for corporate clients but an even more formidable challenge for private individuals as in this case. f. The client will need to be fully advised and to reflect on matters and consider its options before committing to a strategy.

81. In such circumstances and given the need for care in reviewing the file before bringing an application of this nature, it would be unrealistic and unfair to expect defendants to respond to a notice of intention immediately after the one-month period provided for in the notice. However, they must not rest on their laurels. Unreasonable delay in bringing such an application may prejudice the defendants’ ability to do so.

82. In the circumstances, including the passage of time since the contract was entered into in 2006 and eight years of silence in the proceedings from the applicants’ perspective, it would be unfair to expect the required steps to happen overnight or to be completed within the one month period mandated by a notice of intention to proceed, particularly when dealing with a group of relatively elderly individual defendants, some of whom are not in good health. Such processes take time particularly since it appears that the legal team was effectively coming new to the matter.

83. In view of the time elapsed from the applicants’ perspective during which time their solicitor had retired, I would not fault the applicants’ solicitors for taking time not only to find a home for the file but to find and acquaint themselves with the file itself, obtaining instructions and instructing new counsel. The difficulties experienced by the applicant in obtaining counsel’s advice are scarcely surprising – the last time counsel was engaged may have been when the defence was served in March 2013. The counsel originally engaged could scarcely have been expected to have been on standby twelve years later.

84. Accordingly, while any such dismissal application must be brought without unreasonable delay, I must also allow for the practical difficulties facing any defendant when a dormant claim is revived out of the blue. The applicants and their advisors should ideally have moved more quickly after the 10 June 2024 service of the notice of intention to proceed, particularly in the light of the advance warning by way of the invalid notice of trial earlier that year. However, the action had been dormant for a long time. Their solicitor had retired in the meantime. She probably briefed colleagues on her retirement as she transferred active clients and files to them, but it would be surprising if she did so for long dormant matters. I expect that the applicants’ solicitors required time to locate the files and for a new solicitor to acquaint themselves with the matter, to introduce themselves to the clients and obtain instructions and to brief new counsel. Since the applicants had seen no meaningful activity since 2014, the time taken to launch the application, viewed in the round, was not unreasonable especially in the light of the plaintiff’s own approach over the years.

Balance of Justice

85. I consider that the plaintiff was responsible for significant delay in issuing proceedings and thus under an increased obligation to progress the matter expeditiously thereafter, particularly given the equitable nature of the relief claimed and, even more, because the applicants raised the question of delay in their defence. The plaintiff was on notice of the issue, rendering its subsequent lethargy all the more inexplicable. Ignoring points which do not withstand scrutiny, no reasonable excuse has been advanced for the delay between completion of discovery by the first defendant in April 2016 and the service of the notice of intention to proceed on 10 June 2024. I do not need to determine whether the plaintiff was content to avoid repaying the Indenture rather than taking steps to compel specific performance as, in any event, it would be inconsistent with Kirwan, let alone Primor and the numerous associated authorities, to allow this litigation to continue in the light of the plaintiff’s failure to pursue litigation between 2017 and June 2024, particularly in view of the pre-commencement delay.

86. Before Kirwan, the Primor test, as it had evolved, would have required me to consider what Collins J described as “a laundry list of factors” in determining how to exercise the judicial discretion, the most important being the extent of any specific prejudice suffered by the defendants due to the inordinate and inexcusable delay. Murray J confirmed at paragraph

46 that in exercising the judicial discretion the Court

“should follow the trail laid in all of these cases – Primor included – by inquiring into the three matters I have identified, but bearing in mind the purpose of the Rule, and the fact that it is a matter for the plaintiff to establish that the discretion to permit the action to proceed should be exercised in their favour. To repeat, these are: first, the total period between the initiation of the proceedings and the bringing of the application to dismiss during which the plaintiff has been inactive. Second, the reason the plaintiff has failed to prosecute the case during these periods. Third, the effect of the delay on the defendant and the proceedings themselves”.

87. Accordingly, it is still appropriate to have regard to many such traditional considerations post-Kirwan, but the balance has shifted. It is less necessary to show specific prejudice in cases which require oral evidence and involve delay of four years or more. As noted above, I do not see this claim as exclusively a documents case (any more than Guilfoyle).

Risk of dismissing a strong claim

88. The plaintiff argued that it would be contrary to justice to dismiss a strong and largely undisputed claim. It is possible that, if diligently pursued, some cases dismissed for want of prosecution might have succeeded at trial. However, as O’Donnell CJ at paragraph 19, Hogan J at paragraph 173 and Murray J at paragraph 55 explained in Kirwan judgments, the courts generally do not assess the strength or weakness of a claim on a want of prosecution application. It is not a relevant consideration save perhaps in the confined circumstances identified by Murray J at paragraph 55 of his judgment (which do not apply here as I would not characterise the claim as unanswerable). While the applicants admitted entering into the contract, they did not admit breaching it.

89. As noted above, the plaintiff’s directors have not deposed to why the dismissal of the action would be unfair from the plaintiff’s perspective or why the plaintiff should still be permitted to pursue the claim despite its failure to do so, despite its having effectively been offered a virtual open goal for so many years, with narrow legal and factual defences. The plaintiff could have gone to trial in 2017. The lack of any credible explanation for its inertia and delays are very relevant to the balance of justice. As in Guilfoyle, the apparent strength of the claim does not mean that the Court should excuse the delay. To the contrary, it renders the plaintiff’s failure to progress the claim more inexplicable.

Lack of Satisfactory Explanation from the Plaintiff

90. Although not decisive, I note the applicants’ testimony that, because of the plaintiff’s prolonged inertia, they assumed it was not minded to pursue the claim, being content to retain the €820,000. Although the plaintiff solicitor disputes any such assumption, he does not advance a plausible explanation and there is no direct evidence from the plaintiff’s own officers or employees to gainsay the applicants’ (not unreasonable) assumption, or to explain the overall failure to progress the claim over the years. Viewed objectively, the plausible conclusion is that the plaintiff was content to sit on its hands.

91. In summary, whether it had a good case or not (which will now never be resolved), the plaintiff has itself to blame for failing to pursue the matter. Its delays are even more intolerable than in Kirwan and the observations expressed in paragraph 200 of Hogan J’s judgment in that case would equally apply here. It would be unjust to the applicants to allow the claim to proceed. In addition to the pre-commencement delay, the plaintiff delayed for approximately eight years without a meaningful excuse. Although the specific prejudice demonstrated by the applicants is moderate (as in Kirwan), there is undoubtedly general prejudice in terms of fading memories etc. The application must succeed in the light of Kirwan (and, although this is little more than a historical footnote, the outcome would likely have been the same prior to Kirwan).

The balance of justice requires dismissal, and I will accordingly grant the reliefs sought in the application and dismiss the proceedings (as against them alone) pursuant to Order 122 and/or the inherent jurisdiction.

92. The applicants appear presumptively entitled to the costs of the application and the proceedings but if any party wishes to contend that the costs should be dealt with on any other basis then they may make submissions to that effect before 16 January 2026, in which event the other party may respond to any such submissions by 30 January 2026, following which I will determine the appropriate order or convene a short hearing as appropriate.

Representation

Simon Boyle SC and David McParland BL, instructed by Greg Ryan Solicitors, for the Plaintiff Michael O’Connor SC and Barry Mansfield BL, instructed by Groarke & Partners Solicitors, for the Second, Third and Fourth Defendants CHRONOLOGY 2006

13 April 2006 Agreement executed

2011

16 August 2011 Plenary Summons

17 October 2011 Statement of Claim

2012

9 July 2012 Motion for judgement in default of appearance by First Defendant

30 July 2012 Judgement in default of defence against Fourth Defendant

19 November 2012 Motion for judgement in default of appearance against second and third Defendants – consent order 2013

20 March 2013 Applicants’ Defence

15 April 2013 Judgment against fourth Defendant set aside

6 June 2013 Motion issued for judgement against first Defendant

26 July 2013 Defence of First Defendant

22 November 2013 Request for voluntary discovery

2014

20 March 2014 Affidavit of discovery of Applicants

24 March 2014 Order for discovery against the first Defendant

17 July 2014 First Defendant discharges his solicitors

2015

5 November 2015 Motion to dismiss defence of first Defendant

14 December 2015 First Defendant makes discovery

2016

16 March 2016 Order for First Defendant to make further and better discovery

13 April 2016 First Defendant makes further and better discovery

2017

17 July 2017 Council supplies documents in response to Plaintiff’s FOI request 2019

12 December 2019 Notice of Intention to proceed

2024

3 January 2024 Notice of Trial served (without serving a Notice of Intention to Proceed)

18 January 2024 Case set down as Non-Jury case (without serving a Notice of Intention to Proceed)

10 June 2024 Notice of Intention to proceed & Letter to solicitors for Applicants re Practice Direction HC127, including Trial Summary for completion

17 July 2024 Reminder letter sent – no reply

16 September 2024 Reminder letter sent - no reply

8 November 2024 Plaintiff issues motion to seek compliance with practice direction and to fix hearing date

28 November 2024 Applicants’ motion to dismiss proceedings for want of prosecution issued

2 December 2024 Plaintiff’s motion listed for hearing – adjourned in light of Applicants’ motion.