High Court dismisses personal injury claim for delay, striking out action due to want of prosecution.

[2025] IEHC 745

THE HIGH COURT

[2011/165]

BETWEEN:

DAVID MCEVOY

PLAINTIFF

AND

DUBLIN CITY COUNCIL

DEFENDANT

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 22nd day of December, 2025

INTRODUCTION

1. The defendant in this application seeks to have the plaintiff’s case dismissed on the grounds of delay. The proceedings concern a claim for damages for personal injuries arising from an incident that the plaintiff alleged occurred on the 23 October 2008. The plaintiff was a paramedic, employed by the defendant. He claims that he was caused to fall from ambulance steps in the course of his employment, and that the incident and consequent injuries were caused by the negligence, breach of duty and breach of statutory duty on the part of the defendant. The proceedings were commenced by a Personal Injuries Summons on the 10 January 2011 and the defendant’s motion was issued on the 12 July 2024.

2. For the reasons set out in this judgment I have concluded that the defendant’s application should succeed, and the proceedings should be struck out for want of prosecution.

THE EVIDENCE IN THE APPLICATION

3. To a large extent, with some unexplained gaps, the chronology is explained in the various affidavits sworn in the context of this application. The decision of the Supreme Court in Kirwan v Connors & Ors [2025] IESC 21 was delivered after this application issued but before it was heard. As a result, the evidence adduced mainly was informed by the previous understanding of the approach to be adopted to this type of application that was set out in the line of authority stemming from Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459. Even so, a feature of the application was the somewhat unsatisfactory level of detail and explanation in the earlier stages of the application.

4. The defendant’s application was grounded on a short affidavit sworn on the 12 July 2024 by Berni Fleming, who is a senior solicitor in the defendant’s law department. Ms. Fleming provided a brief description of the progress of the proceedings, explaining that an inspection motion was dealt with by the Master of the High Court on the 28 January 2014. She noted that the plaintiff swore an affidavit of discovery relating to medical records on the 5 February 2018. She asserted that despite the service by the plaintiff of notices of intention to proceed and a notice of trial, “no steps whatsoever have been taken, effectively, by or on behalf of the Plaintiff to prosecute his claim against the Defendant, and it is now in excess of fifteen years since the date of the Plaintiff’s alleged accident and thirteen years since the proceedings herein were issued. Because of this long delay, the Defendant is now extremely prejudiced in defending this matter …”

5. Hence, the focus was on the steps in the proceedings, but very little detail was given and there was no evidence adduced to substantiate the claim that the defendant was prejudiced by the delay in the case.

6. The plaintiff’s solicitor, John Hennessey, swore a replying affidavit on the 15 November 2024. By reference to a notice of change of solicitor that had been filed on the 19 June 2024, Mr Hennessy stated that there had been a breakdown in the relationship between the plaintiff and his previous solicitor, although he did not consider it appropriate to set out the reasons for that breakdown.

7. Mr. Hennessy noted that Ms. Fleming had not referred to the fact that the defendant had not complied with its discovery obligations until the 14 February 2020. He did not set out when that discovery was ordered or agreed or the effect of that failure. Mr. Hennessy set out that he was first contacted by the plaintiff in February 2023, but that the notice of change of solicitor could not be lodged until June 2024. No explanation was offered for that situation other than that it was “through no fault of the Plaintiff.” Mr. Hennessy speculated that the inactivity in 2020 and 2021 could “presumably” be attributed to the Covid 19 restrictions. However, there was no actual evidence to support that contention beyond his speculation, and no explanation of what the plaintiff wanted to achieve but was prevented from achieving during that period.

8. More substantively, Mr. Hennessy referred to the plaintiff’s injuries and stated that the severity of the injuries required the taking up of several reports. He stated that at the earlier stages of the proceedings it was difficult to obtain a long-term prognosis. In that regard, he exhibited a booklet of medical reports. The booklet comprised ten medical and occupational reports from 2009 and 2010; three reports from late 2018 and early 2019; three reports from 2022; and one report from 2023. Mr. Hennessy accepted that the case had taken too long, but suggested that the plaintiff’s previous legal advisors adopted a wait and see approach to his injuries and his ability to return to work.

9. Finally, Mr. Hennessy observed that the defendant had not pointed to any specific prejudice resulting from the delay and that there was no complaint about delay in the comprehensive inter partes correspondence. He stated that the case was ready for hearing and that the plaintiff had instructed him to proceed.

10. Ms. Fleming swore a supplemental affidavit on the 12 February 2025, which was far more detailed than her earlier affidavit. Ms Fleming noted that pleadings had closed in the case with the delivery by the plaintiff of his reply to the defence on the 10 October 2011. After that, the defendant sought voluntary discovery of the plaintiff’s medical records on the 1 December 2011. The plaintiff’s inspection motion resulted in a consent order made by the Master of the High Court on the 28 January 2014.

11. After the plaintiff sent a notice of intention to proceed on the 12 October 2016, the defendant made, or perhaps repeated, a request for voluntary discovery (Ms. Fleming was not clear on this issue), and the plaintiff’s affidavit of discovery was sworn on the 5 February 2018.

12. The plaintiff served two notices of intention to proceed in 2018 and issued a notice of trial on the 8 January 2019. Notwithstanding the notice of trial, the plaintiff sought voluntary discovery from the defendant by letter dated the 12 July 2019. This resulted in an affidavit of discovery on behalf of the defendant being sworn on the 13 February 2020.

13. Following correspondence in March 2022, the case was listed for hearing on the 14 February 2023. The plaintiff delivered updated particulars of personal injuries, and updated particulars of breach of contract and negligence on the 3 February 2023, less than two weeks before the scheduled trial date. Ms. Fleming states that the trial date was vacated and the matter lay dormant until the notice of change of solicitor was served on the defendant on the 1 July 2024, which in turn prompted the issuing of this motion.

14. Ms. Fleming stated that the defendant was prejudiced by the general effect of the lapse of time on the memories of witnesses. This was stated to be important where liability was in issue, and where the case depended on oral evidence. Of the two witnesses to the incident that gave rise to the proceedings, Ms. Fleming asserted that one of the witnesses, a Ms. Bryce, was not contactable. By reference to Mr. Hennessy’s affidavit, Ms. Fleming disputed that the plaintiff’s advisors were right to adopt a wait and see approach and she asserted that in any event the most recent medical report dated from February 2023.

15. Among the documents exhibited by Ms. Fleming is a letter dated the 7 February 2023 from the defendant setting out information that related to loss of earnings and that had been requested by the plaintiff’s solicitors on the 7 December 2022. In addition, there was an email from the plaintiff’s solicitor on the 8 February 2023 indicating that an application for the adjournment of the trial was to be made the following day, suggesting that the application was initiated by the plaintiff’s side.

16. Mr Hennessy swore a further affidavit on the 30 October 2025 in which he stated that the plaintiff’s side, in fact, had been in contact with Ms. Bryce, and that she was available and recalled the incident.

17. The final affidavit in the application was sworn by the plaintiff himself on the 11 November 2025. He adverted to the breakdown in his relationship with his former solicitor but stated that he had been advised that it was not appropriate to detail the reasons for that breakdown. He attributed the delay to the complexity of his injuries and uncertainty as to whether he would undergo a spinal fusion surgery. That surgery proceeded in November 2020. He explained that he was under the care of a variety of consultants from 2008 and that there were differing views as to the appropriate course of treatment. He stated that, in addition to various pain management interventions, he underwent three different surgeries, in December 2008, March 2009 and November 2020; and that “the injury had not crystallised until 2022”.

CHRONOLOGY

18. By reference to the book of pleadings furnished to the court and the information contained in the affidavits, the following appears to be the essential chronology relevant to this application:

10 January 2011 Personal Injuries Summons

10 February 2011 Appearance entered for the defendant

14 February 2011 Notice for Particulars served by the defendant

14 February 2011 Personal Injuries Defence delivered by the defendant

3 October 2011 Notice for Particulars served by the plaintiff

10 October 2011 Reply to Defence delivered by the plaintiff

19 October 2011 Replies to particulars delivered by the defendant

24 October 2011 Replies to Particulars delivered by the plaintiff

1 December 2011 Defendant seeks voluntary discovery of the plaintiff’s medical records

16 December 2013 Notice of Motion issued by the plaintiff seeking inspection.

28 January 2014 Consent Inspection Order made by the Master of the High Court

12 October 2016 Plaintiff served Notice of Intention to proceed

5 February 2018 Plaintiff swears an Affidavit of Discovery

14 March 2018 Plaintiff serves a Notice of Intention to Proceed

10 December 2018 Plaintiff serves a Notice of Intention to Proceed

8 January 2019 Plaintiff serves a Notice of Trial

13 February 2020 Defendant swears an Affidavit of Discovery

31 March 2022 Defendant serves a Notice to Produce

19 April 2022 Plaintiff serves a Notice to Produce

28 April 2022 Affidavit verifying the defence sworn on behalf of the defendant

7 December 2022 Plaintiff seeks information from defendant relating to calculation of loss of earnings claim

1 February 2023 S.I. 391 schedule furnished by the plaintiff

3 February 2023 Updated particulars of personal injuries served by the plaintiff

3 February 2023 Updated particulars of breach of contract, negligence and breach of duty served by the plaintiff

7 February 2023 S.I. 391 schedule served by the defendant

8 February 2023 Defendant provides information requested by plaintiff on 7 December 2022

8 February 2023 Plaintiff informs defendant by email that application will be made to vacate trial date

14 February 2023 Case listed for hearing

19 June 2024 Notice of change of solicitor served on behalf of the plaintiff

12 July 2024 Motion to dismiss for want of prosecution issued by the defendant APPLICABLE LEGAL PRINCIPLES

19. The parties’ arguments were framed by reference to the judgments of the Supreme Court in Kirwan v Connors t/a MJ O’Connor Solicitors & Others [2025] IESC 21, which were delivered on the 30 May 2025. The parties also referred to the subsequent judgments of this court in Nowak v Institute of Chartered Accountants in Ireland [2025] IEHC 408 and Barr J. in Dennis Guilfoyle Developments Ltd v. Wardrop [2025] IEHC 414. At the hearing of the application, the court referred to a further recent decision, Doyle v Commissioner of An Garda Síochána & Others [2025] IEHC 591, in which Dignam J. considered the question of cumulative delay and other issues in some detail. The parties were afforded a period following the hearing if they wished to make further short written submissions in relation to the application of that judgment.

20. The proper approach to this form of application is now set out in the judgments of the Supreme Court in Kirwan v. Connors & Ors. [2025] IESC 21. Four judgments were delivered by the court in that case. The judgment of the Chief Justice was agreed with by Dunne, Charleton, O’Malley, and Hogan JJ.; and the judgment of Hogan J. was agreed with by the Chief Justice, Dunne, Charleton and O’Malley JJ. An additional judgment was delivered by Murray J., who disagreed with the majority in respect of the source of the power exercised when an application is brought to dismiss an action for want of prosecution, but which appears to be largely in agreement in relation to the manner in which such application should be approached by and disposed of by the court. Collins J. dissented in respect of the manner in which the majority proposed to approach and reformulate the test in Primor Plc v. Stokes Kennedy Crowley [1996] 2 IR 459.

21. The approach adopted by the majority in Kirwan involves a significant readjustment of the approach to be adopted to applications to strike out cases for want of prosecution and turns the main focus of analysis to the lapse of time involved in a case.

22. The starting point is O. 122, r. 11 RSC, which permits a defendant to bring an application to strike out a proceeding where no step in the proceedings has been taken for two years. The majority endorsed the view that the court retained an inherent jurisdiction to strike out cases for want of prosecution, but that jurisdiction interacted with and was informed by o.122, r.11 and treated the baseline of 2 years of inactivity as triggering an application to strike out.

23. As Order 122, rule 11 is central to the analysis it is worth setting what it provides in full: “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.”

24. In his judgment which seeks to gather together the elements of agreement and disagreement in the various judgments delivered by the court, O’Donnell C.J., at para. 26, summarised the correct approach: “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 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 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.”

25. For the purposes of this application, it therefore appears to the court that the first issue to be considered is whether the application was issued in accordance with Order 122, rule 11. Is this a situation in which there has been no proceeding for two years from the last proceeding had?

26. The decision of Dignam J. in Doyle v. Commissioner of An Garda Síochána addressed the meaning of the term “proceeding” as used in Order 122, rule 11, and how that term interacts with the required analysis. Essentially, as explained in more detail in the passage from Doyle below, the term “proceeding” has to be taken to refer to a formal step in the proceedings, and the initial focus of the court must be on delay in the sense that no formal steps have been taken. “34. It is long-established that a “proceeding” within the meaning of Order 122 Rule 11 refers to the taking of a formal step in the proceedings (a “step” does not include service of a Notice of Intention to Proceed or a Notice of Change of Solicitor). The test set out by O'Donnell CJ in paragraph 26(i) – (iv) does not refer to a failure to take a step in the proceedings but rather to “inactivity”, and “total inactivity” and “complete inactivity”. However, it seems to me that for the purpose of calculating the period of delay, “inactivity” means inactivity within the proceedings or the absence of a formal step in the proceedings. Given that Order 122 Rule 11 is placed at the centre of the approach, it seems to me that in the absence of a clear statement by the Supreme Court that it was departing from the earlier jurisprudence that ‘ proceeding’ means a formal step in the proceedings, the “ inactivity” referred to must be inactivity in the proceedings in the sense of there being no formal step in the proceedings. Furthermore, Murray J said that the term “ proceeding” in Order

122 Rule 11 is “an act that has some degree of formality and significance and which is done in furtherance of an action…something in the nature of a formal step being either an application to the court or at least a step…which is required by the rules’ ( Allen v Redland Tile Co (Northern Ireland) Ltd. [1973] NI 75”. Murray J also said at paragraph 45 that “…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 the case, and the impact on the defendant and the proceedings themselves of the passage of time…” (emphasis added). The majority did not demur from this. Thus, I understand the Supreme Court, when referring to inactivity for a particular period, to mean the absence of procedural steps in the proceedings.

35. Activity outside of formal steps in the proceedings can and, in many cases, must, be taken into account but this is not for the purpose of calculating the actual delay. Rather it is for the purpose of assessing whether the delay or inactivity in the proceedings is explained and for the purpose of determining whether, in all the circumstances, the case should be dismissed. It seems to me that this is what is referred to by Murray J at paragraph 53 of his judgment where he states “ …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…””

27. In that light it can be seen that in the two-year period immediately preceding the issuing of the defendant’s notice of motion on the 24 July 2024, a number of steps were taken by the plaintiff. As can be seen from the chronology above, the case was listed for trial on the 14 February 2023. The defendant did not appear at that stage to object to the trial going ahead or raise an issue about delay. The plaintiff and defendant exchanged their witness schedules in accordance with S.I. 391/1998 on the 1 February 2023 and the 7 February 2023 respectively. The plaintiff delivered updated particulars of breach of contract and negligence and updated particulars of personal injuries on the 3 February 2023.

28. As noted by Dignam J. in the passage from Doyle v. Commissioner of An Garda Síochána above, Murray J. in Kirwan v. Connors was of the view that one of the three matters that needed to be considered was “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)” [emphasis added].

29. The question that must be addressed at this point is whether the steps taken by the plaintiff in February 2023 constitute a “proceeding” for the purposes of Order 122, rule 11. If the steps were a “proceeding” then the defendant’s motion was not taken following a two-year period of inactivity, and the court will then have to consider whether there is a basis in the reformulated approach articulated in Kirwan v Connors nonetheless to proceed to consider whether the proceedings should be struck out by reference to the overall cumulative delay in these proceedings. The term “proceeding” is not defined for the purposes of Order 122, rule 11 and there is no directly authoritative definition in the case law.

30. In his judgment in Kirwan v. Connors, Hogan J. noted that it is “not entirely clear what constitutes a ‘proceeding’ for this purpose”. Hogan J. noted as “helpful” that in Allen v. Redland Tile Co. (Northern Ireland) Ltd. [1973] NI 75, Gibson J. considered that the proviso in the equivalent rules that “if no order has been made on a notice of summons it shall be deemed not to be a proceeding demonstrates what might otherwise be a proceeding is not to be so regarded if it does not advance the action.”

31. Hogan J. went on to note English authority that filing affidavits in answer to a motion and serving a notice requiring delivery of a statement of claim were not steps in proceedings. However, he observed at para 17 of his judgment that: “Independently of authority one might suggest that at least the filing of affidavits is a step in the proceedings because this step presumably seeks to advance the action. The same might be said of a notice requiring the delivery of a statement of claim. These are nevertheless matters which might perhaps usefully be clarified by amendments to the Rules of the Superior Courts.”

32. On the other hand, in his judgment at para 43., Murray J. described proceeding in the following way: “The term ‘proceeding’ as it appears in O. 122 r 11 has a broad meaning, and there is no doubt whatsoever about what that meaning is: ‘an act that has some degree of formality and significance and which is done in furtherance of an action... something in the nature of a formal step being either an application to the court or at least a step... which is required by the rules’ (Allen v Redland Tile Co. (Northern Ireland) Ltd. [1973] NI 75). This has been found to include the delivery of any pleading, or in the case of summary proceedings, an affidavit. It includes applications for leave to serve interrogatories, for the provision of security for costs, an application to compel delivery of replies to particulars, for judgment in default of defence, the issuing of a motion for discovery, indeed the issuing of a motion to dismiss an action by reason of any procedural default, or the service of the notice of trial. Since the amendment of the RSC to require the delivery of a formal request for discovery before proceeding to seek orders for the making of discovery from the court, the sending of such a letter and, obviously, the delivery of an affidavit of discovery are all procedural steps within the meaning of the Rule. So are the issuing of a motion to dismiss proceedings because of a failure to make discovery, or applications for further and better discovery. Applications to admit proceedings to case management, or for directions, all come within the rule. If a plaintiff has not taken any of these steps for a period of two years, they have at the very least questions to answer as to why that is so.”

33. While there is some difference in emphasis and a difference in the descriptions of the breadth of the meaning to be attached to the term “proceeding” in the judgments of Hogan and Murray JJ., it seems to me that both judgments identify the necessity for “an act that has some degree of formality and significance and which is done in furtherance of an action…something in the nature of a formal step being either an application to the court or at least a step…which is required by the rules”, per Gibson J. in Allen v. Redland Tile Co. (Northern Ireland) Ltd.

34. Bearing in mind the observations from the Supreme Court above, I consider that certain of the steps taken by the plaintiff in February 2023 can be treated as a “proceeding” for the purposes of this application.

35. In the first instance, I do not consider that the email from the plaintiff in December 2022 and the defendant’s reply in February 2023 can be treated as a proceeding. That step effectively amounted to a request in correspondence for information or clarification of certain matters. While they were taken with a view to advancing the case and preparing for a then imminent trial, they were somewhat informal and were not presented by reference to a particular process. However, the same cannot be said about the service of updated particulars. The service of updated particulars is not required by the Rules, but it amounts to something in the nature of a formal step which has the effect of binding the plaintiff to what is contended for in those documents and adding definition to the matters that formally are in issue between the parties at trial.

36. I agree with the general proposition as stated by the authors of Delaney and McGrath on Civil Procedure, (5th Ed., 2023), at para 5-146: “A party is required to furnish particulars on the basis of the facts as they are known at the time of the pleadings and is not under a general continuing obligation to provide updated or supplementary particulars. However, if new information comes to light in relation to matters of which particulars have been provided and which could cause surprise if relied upon, then the party should furnish supplemental particulars or otherwise put the opposing party on notice.” [I have removed footnoted references in the text]

37. In this case, particularly in respect of the medical evidence, it was clear that the nature and extent of the plaintiff’s injuries, and the consequences of those injuries for his occupational future, required updating in light of his spinal fusion operation in November 2020. The relevant report in respect of those injuries was available in 2022 and it was unsatisfactory that updated particulars were only sent on the eve of the scheduled trial. Nevertheless, I consider that the steps involved in providing an updated particulars of personal injuries and an updated particulars of negligence are sufficiently formal and directed to the furtherance of the action. That view is fortified by the circumstances of this case, where, without any objection from the defendant, the plaintiff had set the action down for trial and the trial was due to be heard on the

14 February 2023.

38. This leads to a consideration of whether notwithstanding that the plaintiff has taken a step in the proceedings in the two-year period preceding this application being initiated, the court should consider whether the case should be struck out by reason of the cumulative delay. In Doyle v. Commissioner of an Garda Síochána, Dignam J. addressed whether there is an absolute requirement for a two-year period without a proceeding in the period immediately preceding the issuing of the motion to strike out for delay. “121. There is no doubt that the two year period is, as discussed above, of central importance. Hogan J describes it as an “objective yardstick”, “a starting point”, a “default period” and an “inflection point”. O'Donnell CJ describes it as a “critical milestone”. Furthermore, the language of paragraph 26(i) and (ii), particularly (ii), of O'Donnell CJ's judgment appears to envisage the application being made on the basis of a two year period immediately preceding the application. Both O'Donnell CJ and Hogan J agree generally with the judgment of Murray J save for his conclusion as to the source of the strikeout jurisdiction.

…

124. On balance, the effect of the majority judgments seems to me to be to impose a general rule that there must be a two year period of inactivity immediately prior to the application (in the sense described above), but this is not absolute and there may be exceptional circumstances in which a shorter period may be sufficient to engage the jurisdiction and, when taken with the overall progress of the case, to warrant an Order dismissing the proceedings.”

39. I agree with the analysis and approach adopted by Dignam J. The judgments in Kirwan v. Connors are very clear that the critical initial measure is that the period of inactivity for two years triggers the defendant’s entitlement to issue a motion to strike out for want of prosecution. It is true that the approach adopted by Murray J. strongly suggests that the wording of O.122, r.11 gives rise to a strict threshold of total inactivity for a period of two years. However, given the majority view was that the court retains an inherent jurisdiction to intervene in cases of delay, I agree that there may be exceptional situations where the jurisdiction is engaged because of the overall delay on the part of the plaintiff in prosecuting the proceedings.

40. A guide to calculating and appraising that overall delay is described at para. 47 of the judgment of Murray J., where he stated: “(ii) 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.

(iii) The courts are well practised at identifying when there is a legitimate explanation for lengthy delays: illness, incapacity, bona fide attempts to settle or to mediate the action and the like. Clearly, in such cases, it is appropriate to view the delay as ‘excusable’ and to extract such periods from the calculation.

(iv) The focus is then on the total period of delay for which no reasonable or proper explanation has been proffered and whether having regard to that period and its impact on the defendant and the proceedings, it is right to dismiss the case.”

41. The reality is that this was a relatively straightforward personal injuries case. There was no good reason why the proceedings remained essentially in a pre-trial stage from 2011 to 2024. It is clear that the proceedings were progressed with expedition from January 2011 to December 2011, when the defendant sought voluntary discovery of the plaintiff’s medical records.

42. No steps were taken by the plaintiff from December 2011 to December 2013 (24 months). The motion for inspection that issued in December 2013 was resolved by an order in January 2014. There was a further extensive period of inactivity from January 2014 to February 2018 (48 months), when the plaintiff swore an affidavit of discovery. I am not making allowances for the notice of intention to proceed delivered in that period as it was not followed up by any step. There was another period of inactivity from the swearing of the affidavit of discovery in February 2018 until to the service of a notice of trial by the plaintiff in January 2019 (11 months).

43. The plaintiff took no substantive steps between January 2019 and the service of a notice to produce in April 2022 (39 months). I note that the defendant swore an affidavit of discovery in February 2020, and served a notice to produce in March 2022, but these matters were not relied on by the plaintiff to explain or excuse his delay during that period. It would be fair to say that from April 2022 to February 2023 there was regular activity in the case, but the plaintiff then had a final period of inactivity between February 2023 and June 2024 (16 months). Viewed in the round, therefore the plaintiff appears to have been responsible for something in the region of 11½ years cumulative delay.

44. There will always be cases where there is some uncertainty about the future course and impact of an injury, particularly a back injury that requires surgical intervention. However, it has never been the case that personal injury proceedings must be postponed until the future course and impact of an injury can be stated with full confidence. Part of the role of the court is to make findings on the basis of the evidence as to the future implications of a current injury, and practitioners are very experienced in sourcing and adducing the appropriate expert evidence to allow the court to make such determinations. In any event in this case the spinal fusion operation occurred in 2020. I am not satisfied that any uncertainty in relation to the plaintiff’s injuries adequately justify or explain the delay here. Moreover, if a plaintiff and his legal advisors genuinely are concerned by significant uncertainty in diagnosis or prognosis of injuries, it is open to them to communicate with a defendant to indicate that the medical position is unclear and that the case is likely to take more time than ordinarily would be expected. There was no communication from the plaintiff seeking to engage with the defendant in that sense.

45. Likewise, I do not accept the speculation on the part of Mr. Hennessy that the covid 19 restrictions are relevant, where there was no evidence of what steps the plaintiff intended to take but was prevented from taking by that situation. A breakdown in a relationship between solicitor and client can be an acceptable explanation for some period of delay in proceedings. However, the reality is that in this application there was no explanation why there was a delay of 16 months in obtaining new representation for the plaintiff, particularly where the plaintiff appeared to be in a position to proceed with a trial in February 2023, and where no explanation was given why the trial date was vacated.

46. All of the above matters to my mind strongly indicate that this should be treated as an exceptional case where the court in the exercise of its inherent jurisdiction should decide to strike out the plaintiff’s case for want of prosecution. The factors that would have been important prior to Kirwan v Connors regarding the question of the prejudicial effects of the delay on the ability of the defendant to meet the case at trial are now less relevant. In that regard the evidence from the defendant was sparse and did not establish any concrete prejudice. However, it is clear that when faced with a cumulative delay of over eleven years, Kirwan v. Connors does not require evidence of prejudice, and the simple fact of such extensive delay is enough to warrant the relief being granted. I also am not satisfied that in a case of this nature any issue arises that falls within the category of exceptional cases identified by the Chief Justice at para 26(iv) of his judgment or by Murray J. at para 54 of his judgment.

47. The only other argument raised by the plaintiff related to an assertion that the defendant had acquiesced in the delay. The question of acquiescence is considered at various points in the judgments of the Supreme Court in Kirwan, and the Court distinguishes between two scenarios.

48. First, general inactivity on the part of a defendant does not prevent a defendant from seeking to have a claim struck out on the grounds of delay. As noted by O’Donnell C.J. at para.

14 of his judgment, the parties “are not co-adventurers in litigation with the same interest in bringing it to conclusion”. Similar sentiments are expressed in the judgments of Hogan and Murray JJ.

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

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

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

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

53. Here, there is no evidential basis for finding that the defendant actively encouraged the plaintiff to refrain from prosecuting the case. However, there is the unusual feature that the plaintiff set the case down for trial and obtained a trial date, and the evidence shows that far from objecting to that course of action or raising a delay issue, the defendant was working actively towards participating in the hearing in February 2023.

54. I consider that this does amount to a form of acquiescence on the part of the defendant; but I am not persuaded that this level of acquiescence bars the defendant from seeking relief for two reasons. First, the plaintiff, not the defendant, appears to have made the decision to vacate the trial date. Second, thereafter the plaintiff gave no evidence of taking any active steps to organise a fresh trial date. As noted above, 16 months elapsed during which no notice of intention to proceed was served, and the defendant then issued this motion.

CONCLUSION

55. In all the circumstances therefore, the court is satisfied that the plaintiff in this case has failed to prosecute his case in a timely manner. Notwithstanding that there was not two years of total inactivity by the plaintiff prior to the defendant’s motion, I am satisfied that the delay in this case is of such a nature that it falls within the category of delay that permits the court to strike out save if there is some particular exigency that in the interests of justice would permit the case to proceed to trial. I am satisfied that there is no such exigency. I do not consider that the defendant’s litigation conduct was such that they should be refused relief in this case.

56. Accordingly, the court will make an order granting the relief in the defendant’s motion and strike out the plaintiff’s action. As this judgment is being delivered electronically my provisional view is that the defendant is entitled to the costs of the action and the motion, to be adjudicated in default of agreement. In case the parties or either of them wish to argue for a different outcome on costs, I will list the matter for final argument before me at 10.30am on Wednesday, the 14 January 2026.