Court of Appeal dismisses appeal where five-year delay lacks compelling medical reasons to override inordinate prosecution delay.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Court of Appeal Record Number: 2025/227

High Court Record Number: 2017/4006 P

Neutral Citation Number [2026] IECA 127

Faherty J. Binchy J. Meenan J.

BETWEEN/

MAURICE O’DONNELL

APPELLANT/PLAINTIFF

- AND –

PATSY DOWLING, FRED MALONE, MICHAEL MURPHY, ALAN DANIELS,

THE MANAGEMENT COMMITTEE OF THE IRISH HOMING UNION

NATIONAL FLYING CLUB, ARTHUR FURLONG, THE IRISH HOMING UNION

SOUTHERN REGION

RESPONDENTS/DEFENDANTS

JUDGMENT of Mr. Justice Charles Meenan delivered on the 17th day of July 2026

Introduction: –

1. An issue that arises all too frequently is what is the correct approach when addressing applications to dismiss actions for want of prosecution. It is often the case that actions are commenced speedily but, after a flurry of activity involving solicitors' letters and the issuing of proceedings, are then followed by lengthy periods, often running into years, of complete inactivity. Such applications involve two competing rights. Firstly, a person's right of access to the courts and secondly, the person at the receiving end of the litigation has a right to have that litigation brought to a conclusion within a reasonable period of time. Having litigation “hanging over your head” for years undoubtedly has adverse consequences, both personally and professionally, for the person involved.

2. Since 1997 applications to dismiss for want of prosecution were determined by the principles set out by Hamilton CJ. in Primor v. Stokes Kennedy Crowley [1996] 2 IR 459. In the years following, these principles were refined to a limited extent only. In possibly oversimplistic terms the application of the “Primor” principles very often led to a situation where, though a plaintiff was guilty of “inordinate and inexcusable delay” in prosecuting an action, this was trumped by a finding that “the balance of justice” lay against dismissing the action. Given the significant numbers of applications to dismiss for want of prosecution that are listed each week in our courts it is not at all surprising that the “Primor” principles were revisited by the Supreme Court in Kirwan v Connors & Ors. [2025] IESC 21.

Background: -

3. The appellant has been actively involved in the sport of pigeon racing for many decades. He was a member of the Management Committee of the Irish Homing Union National Flying Club (the fifth named defendant/respondent) an unincorporated Association. The sixth named defendant/respondent, Arthur Furlong, was the secretary of the seventh named defendant/respondent whose rules govern the fifth named defendant/respondent.

4. In the proceedings the appellant seeks, inter alia, damages for defamation. As is stated in his replying affidavit: – “8. The defamatory statements and publications, the subject matter of my claim for damages in defamation, occurred against a background where in the spring of 2017 I was unlawfully suspended from my membership of the fifth defendant by the 1st to 5th defendants.”

5. A plenary summons was issued on 5 May 2017. The appellant sought injunctive relief. The following is a chronology of the proceedings: - “5 May 2017 Plenary summons issued.

16 May 2017 Return date for notice of motion for interlocutory injunction. On consent of the parties the court (Gilligan J) adjourned the appellant's application for injunctive relief to 20 June 2017.

20 June 2017 A statement was read on behalf of the first to fifth defendant/respondents with the agreement of the sixth and seventh named defendant/respondent to the effect that the appellant was not suspended from his membership.

27 April 2018 Statement of claim delivered to all defendants.

8 November 2018 Defence of sixth and seventh named defendants.

12 October 2023 Sixth and seventh named defendants/respondents issue a motion seeking to have the proceedings against them dismissed for want of prosecution.”

6. It will be seen from the above chronology that a period a little short of five years elapsed in which the appellant took no steps to prosecute his action against the sixth/seventh named defendants/respondents i.e. November 2018 to October 2023.

The motion: –

7. In its notice of motion, dated 12 October 2023, the sixth and seventh named defendants/respondents sought the following relief: – “(a) An order dismissing the plaintiff's proceedings for want of prosecution on the grounds of inordinate and/or inexcusable delay.”

8. The application was grounded on an affidavit of Henry Byrne, president of the seventh named defendant/respondent. At para. 3 of his affidavit he states: - “I say that I am making the within affidavit to ground an application to dismiss the within proceedings for inexcusable or inordinate delay. I say that in this regard the plaintiff has taken no steps in the proceedings, as far as your deponent can discern, since 5 November 2018 when the plaintiff’s solicitor acknowledged that our defence would be shortly delivered. The last pleading from the plaintiff was 27 April 2018. The plaintiff has not advanced the proceedings since. I say that more than five years have passed since the plaintiff took any steps within the said proceedings.”

9. A replying affidavit was filed by the appellant. Having set out the background to the proceedings and the above chronology, he stated that: – “14. I say and believe that any delay in progressing the proceedings was attributable to the fact that I suffer from a number of chronic medical conditions for which I have been undergoing significant GP and specialist care. The effect of my chronic medical conditions on my overall health, well-being and quality of life in the last four years in particular was profound and prevented me from attending to matters. As of the date of the swearing of this Replying Affidavit, my overall condition has thankfully stabilised with specialist treatment but it is only recently that this has occurred.”

10. The appellant exhibited a medical report dated 8 November 2023 from his GP. This medical report detailed a number of medical conditions suffered by the appellant and concluded: – “This man has been unable to attend his affairs in the past four years as he normally would be due to the conditions listed.

Thankfully his medical condition at present is relatively stable and he is fully competent to manage his affairs again.”

11. In his replying affidavit the appellant referred to a medical event in May 2019 when he was in Tenerife. He says that as a result of his medical condition he “suffered a sudden collapse and loss of consciousness”. He was admitted to the intensive care unit in hospital in Tenerife where he remained for one week. The appellant also made reference to the effect that the Covid 19 pandemic and subsequent lockdown had upon him. He stated that arising from his medical condition he was advised that it was particularly important for him that he strictly observed all Covid 19 lockdown protocols and other public health restrictions.

Judgment of the High Court: –

12. In an ex tempore ruling the trial judge (O'Regan J.) acceded to the application of the sixth and seventh named defendants/respondents and dismissed the proceedings for want of prosecution. In the course of her ruling the trial judge referred to the recent Supreme Court decision in Kirwan v Connors. An agreed note of the ruling of the trial judge records the following: – “The court noted that the Supreme Court in Kirwan held that a period of delay of two years was pivotal and that a claim may be dismissed after a delay of two years. In this case the delay was four years.”

and: –

“The Court reiterated that it did not accept that the matters contained in the GP report excused the delay. The court noted that legal services were considered a necessary service during Covid and there was nothing to suggest that the Plaintiff was not able to email or contact his solicitor to give instructions. The GP report suggested that the Plaintiff’s mobility was impaired and that he had to move his bed but the Plaintiff was not bed bound. He could have delivered a Reply, a Notice of Trial or particulars. All steps were available to him, but none were availed of.”

and: –

“The Court held that the plaintiff had not identified any compelling reason why the claim should not be dismissed. The Court held that the plaintiff had not identified any exceptional circumstances or pressing exigency of justice that required the case should be allowed to proceed to trial. The Court held that the plaintiff’s claim against the Sixth and Seventh named Defendants is a matter for oral evidence and given the eight-year delay since the telephone call and given the lack of movement in the case by the Plaintiff apart from a singular Replying Affidavit in response to the Sixth and Seventh Defendant's motion to dismiss, and not taking into account the merits of the Plaintiff's claim against the sixth and seventh defendants, the plaintiff’s claim against the Sixth and Seventh Defendants should now be dismissed for want of prosecution, and the Court so ordered.”

Notice of appeal: -

13. There were some eight grounds of appeal. The following are the central grounds: – “2. The trial judge erred in law and/or in fact in finding that the explanation and/or reason given by the Plaintiff for the delay in prosecuting his claim against the Sixth and Seventh defendants was not a legitimate reason and/or was not a reasonable explanation for the delay in prosecuting his claim against the Sixth and Seventh Defendants.”

and: –

“6. The trial judge erred in law and/or in fact in finding that the lapse of time of over eight years since the occurrence of the telephone call between the Plaintiff and the Sixth Defendant on 24 April 2017 has prejudiced the Sixth and Seventh defendants to the extent that the Plaintiff’s claim against the Sixth and Seventh Defendants should be dismissed.”

and: –

“8. The trial judge erred in her interpretation and/or application of the principles to be applied when determining whether a proceeding should be dismissed for want of prosecution as set out in the decision of the Supreme Court in Kirwan v Connors [2025] IESC 21.”

Consideration of appeal: –

14. As mentioned earlier the Supreme Court in Kirwan v. Connors revisited the principles that a court should apply in applications such as this. Judgment was given by the Supreme Court in Primor v. Stokes Kennedy Crowley in December 1995. In the following

30 years or so the applicable principles, as summarised by Hamilton C.J. at page 475 of the judgment, were considered and applied in numerous High Court judgments and judgments of this Court. With this experience in mind in Kirwan v Connors O’Donnell C.J. stated: – “16. All members of the court are, however, agreed that whatever jurisdiction is located, the Primor test has not been fully effective in achieving the object for which it was devised, and moreover has given rise to difficulties which should be capable of being avoided by a more refined test. The most obvious symptom of the difficulty is the fact that Primor claims in the High Court have become quite protracted, involving detailed debates, sometimes contained in extensive affidavits, requiring considerable court time, and sometimes extensive judgments. These in turn lead to appeals, where the Court of Appeal can often take a different view to the trial judge. The end result can often be unsatisfactory and protracted proceedings on affidavit, with unpredictable results, which particularly when they result in a refusal of the application for dismissal of the proceedings, have the perverse consequence of adding significantly to the delay in getting the proceedings to a hearing.”

and: –

“23. The weakness of the Primor test as revealed by subsequent experience is firstly, that it involved a balance of a number of factors giving rise to a necessarily subjective and contestable conclusion, resulting in lengthy hearings and appeals. Second, it proceeded on an assumption that the jurisdiction was an interference with the right of access to the court, which required particular weighty justification, and therefore tended against dismissal of even very stale claims. Third, the test did not recognise, and therefore did not give sufficient weight to, the fact that lapse of time alone is harmful to the administration of justice, and should be a sufficient basis in itself for dismissal of proceedings.”

15. In refining the test in Primor there was much discussion as to whether the jurisdiction to dismiss for want of prosecution derived from the inherent jurisdiction of the Court or the provisions of O. 122, r. 11 of the Rules of the Superior Courts which provides:

–

“ – – – 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.…”

The period of two years was of significance.

16. Though the Supreme Court in Kirwan v Connors were of the view that the appeal against the order striking out the proceedings should be dismissed this conclusion was arrived at for different reasons, as may be distilled from the various judgments. However, O’Donnell C.J. helpfully set out the majority view of the Court as follows: – “26. 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. This means that:–

(i) Until the point is reached where there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of process or there is prejudice to the defendant to the level required to ground an application under the old O’Domhnaill v Merrick jurisdiction.

(ii) After two years of total inactivity, a claim may be dismissed for want of prosecution. It is likely that a claim will only be dismissed at this point if in addition to the period of inactivity a plaintiff can point to some additional prejudice or other factor pointing towards dismissal. If a court does not dismiss the claim, it would be entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal.

(iii) If there has been four years total inactivity then the claim should be dismissed if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably accompanies a long effluxion of time, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial. Conversely, if there are factors such as specific prejudice to the defendant that will strengthen the case for dismissal, but it should be emphasised that it is not necessary to point to any such factor: passage of this amount of time is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.

(iv) Finally, where there has been a cumulative period of complete inactivity for more than five years, I agree with Murray J that the court should have a generous power to dismiss cases, and the court should feel free to dismiss the proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational social or economic disadvantage, or otherwise in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated to conclusion or where there has been serious misconduct by the defendant in the course of the proceedings. I agree with what Murray J. says about such cases at paragraph

45 of his judgment.”

Importantly, O’Donnell CJ. added the following: –

“27. It should, however, be recognised that the test is not mechanical, and it remains a matter of judgment, and it will remain conceivable that individual judges may take different views in borderline cases. This is an unavoidable and necessary feature of a legal system…”

17. In applying these principles to the facts of this case it should be stated at the outset that there is no issue of “public interest” involved. Further, to prosecute his claim the appellant will require the giving of oral evidence including the contents of a telephone call made some 9 years ago. As indeed the High Court noted, as of July 2025, some eight years had passed since the making of that telephone call. A further year has now passed and were this action to proceed, it may well take a further year for the action to be assigned a trial date and a hearing. Thus, the eight years would become ten years. Such a lapse of time would do little to enhance the memories of those involved. Thus, the principles set out in O’Domhnaill v Merrick [1984] I.R. 151 may well apply.

18. The chronology of the various steps that were taken, or not taken in this case, clearly establish that no steps were taken in the proceedings since November 2018 until the issuing of the motion in October 2023 (a step that was taken by the sixth and seventh respondents herein and not the appellant and which, in any event, is not to be considered as a proceeding pursuant to Order 122, r.11 of the Rules of the Superior Courts). This is a period a little short of five years. This puts the delay at what could be described as being at the “serious end of the scale”.

19. The reasons advanced by the appellant for his inactivity are medical in nature. Whilst I do not doubt that these medical conditions may have significantly degraded the appellant’s quality of life I do not, like the trial judge, believe that they were of an order that prevented him giving instructions to proceed with the action. There was no reason why the simple step of the delivery of a reply or setting down the action could not have been taken. The only period identified by the appellant in which his medical condition may have prevented him from proceeding with his action was the period when he was admitted to intensive care in hospital in Tenerife. However, that was only for one week and was back in May 2019.

20. The appellant has identified no “exceptional situations that he can rely upon for his inactivity”. At all relevant times, the appellant had the benefit of being represented by a solicitor and thus was not at any “educational social or economic disadvantage”

21. By reason of the foregoing I am satisfied that the appellant has identified no grounds upon which this court should interfere with the judgment of the court below.

22. In short, even accepting for the sake of argument that what is in issue here is four years total inactivity, there are no “compelling reasons” of the nature envisaged in Kirwin v. O’Connor at play here. Moreover, there would be undoubted prejudice to the sixth and seventh defendants/respondents were the matter to proceed to trial. In any event, the overriding impression in this case is that there was total inactivity of five years. The appellant has not established any “pressing exigency of justice” that would require the appellant’s claim against the sixth and seventh defendants/ respondents to go to trial. I therefore dismiss the appeal.

23. On the issue of costs, as the appeal has been successfully resisted by the sixth and seventh named respondents they are, in the provisional view of the Court, entitled to their costs of the appeal. Should the appellant wish to take issue with this he may do so by furnishing written submissions (not in excess of 1500 words) to be delivered no later than

10 days after the date of the delivery of this judgment. The respondents may reply to these submissions (also not in excess of 1500 words) by delivering same within 10 days thereafter.

24. As this judgment is being delivered electronically Faherty and Binchy JJ. have authorised me to record their agreement with it.