High Court dismisses defendant's motion to review prior judgment based on new Supreme Court authorities.

THE HIGH COURT

[2026] IEHC 41

[Record No. 2014/6345P]

BETWEEN

LUKE CHARLETON AND MICHAEL COTTER

PLAINTIFFS

AND

GERARD SCRIVEN

DEFENDANT

JUDGMENT of Mr Justice Kennedy delivered on 28 January 2026.

1. The defendant’s notice of motion sought orders pursuant to Articles 34.3.1 and 40.1 of the Constitution and the Court’s inherent jurisdiction to “review, alter or supplement” my 24 January 2025 judgment (“the Original Judgment”), which refused the defendant's motion to dismiss the claim for want of prosecution and/or also sought to strike out the claim pursuant to O.19 “in circumstances found to be unjust” in the light of two subsequent Supreme Court authorities Tweedswood Limited (in Receivership) & Tom Kavanagh (Receiver) v Power [2025] IESC 18, and Kirwan v Connors & Ors [2025] IESC 211. It also sought an Although the notice of motion and grounding affidavit emphasised Tweedswood, the Supreme Court’s decision in Kirwan was more relevant to this aspect of the defendant’s application and I have primarily considered the application on that basis.

Order pursuant to O.52, r.3 vacating an interlocutory injunction (“the Injunction”) granted to the plaintiffs on 22 August 2014.

2. Although characterising the relief as being to “review, alter or supplement” my previous decision, the defendant effectively asks me either to reverse the Original Judgment (in which I refused to dismiss the proceedings) or to direct that it would be unjust to allow the plaintiffs to continue to pursue the litigation in view of their delay and default or to lift the Injunction. His basis for doing so is in reliance on two recent Supreme Court decisions;

(a) Kirwan, which restated the test for dismissal for want of prosecution or pursuant to the inherent jurisdiction on grounds of delay; and (b) Tweedswood, which reaffirmed the jurisdiction to discharge interlocutory orders where a plaintiff has failed to progress the action. The application therefore raises the issue as to whether the defendant can ask me to revisit the Original Judgment based on later legal rulings.

3. If these proceedings had remained dormant up to the time when this motion was issued, then, on the basis of Kirwan, the defendant would have had a strong case for dismissal for want of prosecution and for the lifting of the injunction, (the latter obviously being a secondary objective). However, an issue arises as a result of the defendant’s previous unsuccessful application to dismiss for want of prosecution and the fact that the plaintiffs have proceeded diligently thereafter. The Original Judgment noted my criticism at the April 2024 hearing of the application (“the Hearing”) of the plaintiffs’ failure to progress the proceedings and the facts that I had encouraged the parties to agree a timetable and I continued to manage the proceedings with a view to progressing them to hearing and there had been no further suggestion that the plaintiffs had failed to progress the litigation. That remains the situation - I see no further basis to criticise the plaintiffs. Since the Hearing they have diligently progressed towards trial. Accordingly, as matters stand, unless it is appropriate to revisit the Original Judgment in the light of the later decisions, there is no basis to grant the reliefs sought; the crucial issue is whether, in the light of the recent decisions, I should “review, alter or supplement” my previous ruling.

Application to lift the Injunction

4. Dealing first with Tweedswood, the Supreme Court discharged an interlocutory injunction in similar circumstances on the basis of a receiver’s delay in litigation. However, Tweedswood did not represent new law. It applied established principles. Clarke CJ had referred to them in his judgment on the Injunction appeal in these very proceedings – indeed Tweedswood cited those comments as did the Original Judgment. Accordingly, Tweedswood was an application of existing principles – a salutary reminder that beneficiaries of interlocutory relief must progress to trial – “use it or lose it". Although it concerned an application to dismiss for want of prosecution, paras. 16 and 23 - 26 of the Original Judgment considered the possibility of lifting the Injunction. I would have done so if I had deemed it appropriate2. However, I concluded that the appropriate course was to dismiss the action with directions to progress the proceedings (a solution endorsed in Kirwan in appropriate cases, particularly where the delay was of the order of two years or so). The Original Judgment recorded my conclusion that, in addition to “the “nuclear” option” of striking out proceedings for want of prosecution I had: “the option of discharging the interlocutory orders by reason of the Plaintiffs’ delay, an option adverted to by the then Chief Justice in his ruling on the injunction appeal in these proceedings. Varying an injunction for failure to prosecute a claim would accord with the principles governing the granting of such reliefs in the first place. As O’Donnell J. observed in Merck Sharpe & Dohme v Clonmel Healthcare Limited [2020] 2 IR 1 and as Clarke CJ noted in his earlier judgment in these proceedings (see para. 7 above), the court may vary or withdraw interlocutory orders where Plaintiffs fail to diligently and expeditiously progress their claim. The balance Although such relief was not specifically sought, the notice of motion also sought “such further and other order as to this Honourable Court may appear just and proper…”.

of convenience assessment in granting such relief assumes that it is temporary. Significant default on the Plaintiff’s part might well cause the Court to review the appropriateness of maintaining such interlocutory orders pending trial. However, the Defendant is not entirely blameless even if greater culpability rests with the Plaintiffs”.

5. For completeness, I should note that, as appears from para. 35 of O’Donnell CJ’s judgment, there were particular facts at play in Tweedswood - the lifting of the order was of limited practical effect, and this seems to have influenced the decision. O’Donnell CJ noted that the discharge of the injunction did not require the surrender of possession to the plaintiff (or anyone else). Accordingly, Tweedswood concerned specific circumstances and was consistent with the approach adopted in the Original Judgment.

6. Most importantly, although the Supreme Court lifted the injunction based on the facts before it, it did not change the test. Accordingly, I doubt that I would have lifted the Injunction even if Tweedswood had been available to me at the time of the Original Judgment. I was relying on the very principles applied in Tweedswood (the earlier dicta of Clarke CJ in these proceedings, which were cited and relied upon therein), even if I came to a different decision in this case.

7. For completeness in this context, I should note the defendant’s complaint that the properties have lain empty despite the plaintiffs having the benefit of the Injunction for a decade, but the plaintiffs blame the defendant for the difficulties experienced renting the premises. I need not resolve that issue now. If the plaintiffs were negligent (and I make no such finding having not heard full evidence and submissions) then that might be an issue for another day. However, any such concern would be readily remedied in damages and would not justify lifting the Injunction on the eve of trial.

8. In summary, as the Original Judgment noted, prolonged delay by a party benefitting from injunctive relief can be seen as a particular abuse of the Court’s processes and may constitute specific prejudice from the perspective of the injunctee. Such default may justify lifting the interlocutory order as in Tweedswood or may weigh in favour of dismissal in the context of a want of prosecution application (as was the case with a similar litigation benefit in Kirwan). In this case, however, the defendant’s role is also relevant, and I did not consider that I should lift the Injunction. Nothing has occurred to change my conclusion.

Kirwan

9. The situation is more complex as far as Kirwan is concerned, because the Original Judgment dealt with the original application on the basis of principles later restated in Kirwan. The new test would have been more favourable from the defendant’s perspective than the test which the Original Judgment applied, reflecting the law as then understood, the Primor test (Primor v Stokes Kennedy Crowley [1996] 2 IR 459). The issue thus arises is whether my determination of the application is final or whether I can or should review it in the light of the clarification and development of the law in Kirwan?

10. To set the scene, I will briefly summarise key aspects of how the original application was resolved: a. At the Hearing, plaintiffs’ counsel noted that similar issues were pending before the Supreme Court in separate and unrelated proceedings (Kirwan). At the end of the Hearing, I noted my “provisional view” (that the application should be dismissed based on Primor) but added that I would delay my judgment pending the Supreme Court decision. I expressly reserved my right to enlarge upon or change my provisional views. The Original Judgment noted that at the Hearing:

“I indicated my provisional views (while reserving my right to enlarge upon or change the same) and I encouraged the parties to agree a timetable designed to progress the matter pending the dissemination of this judgment’s finalisation and circulation of my decision and I have been continuing to case manage the proceedings with a view to progressing them to a hearing as soon as possible. (There has been no suggestion that the Receivers have been failing to comply with the more recent directions or that they have not been seeking to progress the litigation since that time or that any delays experienced since then are their responsibility).

At the parties’ request, I delayed delivering my written judgment pending an anticipated Supreme Court decision on another case which could have been relevant to the application. However, since that decision is not yet available, the Defendant requested that I issue my written judgment and I am accordingly doing so”. (emphasis added) b. The plaintiffs submit that the order issued following the Hearing was not appealed and is therefore a final order, but there are issues in respect of the timing and terms of that order. When the registrar notified the parties on 23 January 2025 that the Original Judgment would be published the following day, the defendant enquired of the registrar as to the opportunity to make further submissions before any order was finalised, and only then became aware that an order recording the dismissal of the application had been perfected two weeks after the Hearing.

The defendant had not appreciated that an order had been perfected after the Hearing (and I would not criticise his lack of awareness in view of the way my comments at the Hearing had left the matter). Furthermore, the defendant says that by the time the Original Judgment issued on 24 January 2025 he was already out of time to appeal. The defendant said that, in not considering an appeal following the Hearing, he relied on my express reservation of the right to change my conclusion and says it is not clear for how long I intended to reserve its position.

The Original Judgment

11. The Original Judgment was to the following effect: a. It recounted the background: i. In 2014, the plaintiffs were appointed receivers of eight properties originally mortgaged to Bank of Scotland Ireland. The defendant owed €4.25m but had made no payments since 2013. The plaintiffs sought orders for possession to facilitate the receivership and secured the Injunction in 2014. ii. The defendant appealed the granting of the Injunction with partial success. The Supreme Court concluded that the plaintiffs only met the “arguable case” threshold. The order was varied. The defendant remained restrained from interfering with the rent collection but the Court varied the Injunction to reflect the plaintiffs’ undertaking not to sell the properties pending trial, an undertaking elicited in response to the finding that the higher standard should have been applied to aspects of the injunction application. iii. In the passage cited in the Original Judgment and in Tweedswood, the Supreme Court expressed concern at the failure to progress the litigation, emphasising the obligation on the plaintiffs by virtue of the interlocutory order. b. In considering the application to dismiss pursuant to O.122 and/or the inherent jurisdiction I adopted the following approach: i. I summarised my understanding of the “Primor” test3, noting that the plaintiffs had acknowledged the inordinate delay since the launch of the proceedings in 2013. Two significant delays occurred while the Injunction appeal was pending - a three-year delay prior to the delivery of the Defence and a 20-month delay in delivering a Reply to the Defence. However, I was most concerned with the plaintiffs’ 53- “I must determine whether there has been inordinate delay, and if so, if any such delay was inexcusable. If so, I must assess what if any prejudice has been suffered, and the factors relevant to the balance of justice including the extent to which the Defendant holds himself responsible for some of the delay”.

month delay following the Supreme Court judgment. I held that all three periods were inordinate, and the plaintiffs were responsible for two of them. ii. The defendant was primarily responsible for the 3-year delay in delivering his defence, but the plaintiffs failed to progress the litigation thereafter. They did not serve their Reply and Defence to Counterclaim until 3 July 2019, after the Supreme Court judgment. Accordingly, the plaintiffs were primarily responsible for that 20-month delay. However, the 4-year delay after the Supreme Court judgment was the greatest concern. iii. The defendant was not blameless. He was in default for three years with regard to his defence. There was no evidence of any concern on his part to progress the proceedings. To the contrary, he adopted positions in these and related proceedings4 which tended to delay rather than to progress the litigation. Examples included his refusal to agree to amendments to reflect the first plaintiff’s retirement and his opposition to applications to join additional parties to the proceedings initiated by his wife5. I concluded that the defendant and his wife could have been more helpful with regard to what should have been uncontroversial applications. However, the litigation was not so complicated as to explain the delay. The plaintiffs could have brought the proceedings to trial but failed to do so.

There were at least four related proceedings. The plaintiffs said that the obstructive approach adopted by the Defendant and his estranged wife delayed these proceedings. In the latter context, O’Moore J. observed at para. 24 of his judgment that the defendant: “…has [not] provided any plausible reason as to why he has gone to such lengths to resist the joinder of Pepper. The reason offered by Mr. Scriven (which is that he would find settlement more difficult) is not credible. A more likely reason is that his resistance to what should be a fairly straightforward application (whichever way it is decided) has resulted in a motion which has caused considerable delay in bringing this action to trial. This delay is, in turn, frustrating enforcement measures being taken against Mr. Scriven in respect of very substantial sums borrowed by him which he has not yet repaid.”

iv. The plaintiffs’ obligation to progress was increased as a result of; (a) the previous extensive and avoidable delay for which they were mainly responsible; (b) the fact that they were beneficiaries of injunctive relief;

(c) the exhortation about delay in the Injunction appeal judgment; (d)

the fact that they were professional, well-resourced and advised

institutional litigants. v. No specific prejudice was established by the defendant; he cited the undoubted prejudice of fading memories and his exposure to the burden of the Injunction for an unnecessarily protracted period. I was not satisfied that the defendant had suffered any prejudice which would make a fair trial impossible or significantly impact his ability to defend it. Given the nature of the proceedings, I did not anticipate insurmountable difficulty with proceeding on the basis of transaction records and the defendant’s own evidence (and that remains my view). Such records and other evidence would establish the details of the transaction, the legal framework, the monies advanced, details of repayments and the extent and composition of the alleged arrears. I doubted that the lapse of time would prejudice the defendant at trial (but I noted that he would be entitled to bring a further application if the position should change). vi. I concluded that any prejudice was more likely to be suffered by the plaintiffs given their evidential burden. vii. I focussed on the maintenance of the Injunction for an unnecessarily extended period, expressing doubt that the High or Supreme Court would have granted the Injunction if the plaintiffs had intimated the timetable which actually transpired. I warned that the plaintiffs should not expect that any further delay would necessarily be excused. viii. Noting the fault on both sides I concluded that dismissal was unjustified at the time of the application but that: “The Plaintiffs would be tempting fate if they were to further try the patience of the Court. Other parties who are the beneficiaries of injunctive relief should similarly appreciate that if they fail to progress matters then, even if the Court does not dismiss the claim for want of prosecution, it may not be inclined to allow a plaintiff to continue to benefit from interlocutory relief if it is not progressing the claim with appropriate expedition. However, I am only concerned with this application. In the circumstances of this case and given the part played by the Defendant himself, I do not consider that either (remedy) would be appropriate yet”. ix. I concluded that the plaintiffs were guilty of inordinate and inexcusable delay, but the defendant had not suffered specific prejudice (other than in respect of the Injunction). I did not believe that the proceedings should be dismissed, or the Injunction varied, adding:

“the Plaintiffs would be on exceedingly thin ice if they fail

to take all reasonable steps to bring these proceedings to trial

at the earliest opportunity. In the event of any further

significant days for which they are responsible, then they would

be at great risk that the Court will either dismiss these

proceedings for want of prosecution or discharge the

interlocutory order.

The Defendant may bring a further application to dismiss for

want of prosecution and/or to have lift the injunction if

it transpires that there is further slippage for which the

plaintiffs are responsible. Furthermore, the Plaintiffs will be

held to the undertakings which the Second Plaintiff and his

solicitor has given. The Plaintiffs should appreciate that they

are on borrowed time and that any further unreasonable delay

which lies at their door will expose them to a risk that the

proceedings will be entirely dismissed or, at the very least, that the interlocutory application will be lifted”.

12. As appears from the Original Judgment, I knew when I heard the application that an appeal raising similar issues was pending before the Supreme Court. I expected that the

decision was imminent but, obviously, I had no insight into the outcome. As with any such appeal there were at least three possibilities; (i) existing jurisprudence could be reaffirmed; (ii) the bar for dismissal could be lowered; (iii) the bar could be raised, imposing more rigorous requirements before cases could be dismissed. Ultimately, the Supreme Court majority chose the second option, overwhelmingly endorsing the application of the inherent jurisdiction and restating the Primor test in a manner which reduced the proofs required for such applications in certain circumstances by significantly increasing the emphasis on the delay, particularly longer delays, and reducing the emphasis on prejudice. Specifically, the decision increased the likelihood of dismissal of extended delay (4-5 years or more, especially in cases that would be dominated by oral evidence) and reduced the need for the defendant to show specific prejudice in cases of extended delay. It also emphasised that the prolonged enjoyment of a “litigation benefit” could weigh in favour of dismissal. However, the outcome in Kirwan could not have been predicted as at the time of the Hearing or the Original Judgment. Different trends6 could be seen from the authorities cited in the Original Judgment, foreshadowing the issues explored in Kirwan and there had been indications that the Courts were taking a more robust attitude if the delay exceeded two years (foreshadowing The alternative views as to issues such as the scope of the inherent jurisdiction and as to how it should be exercised were highlighted in: (i) the dissenting judgments in Kirwan; (ii) the concern expressed across the various judgments about the subjectivity and difficulty of applying the Primor test. The importance of the issue, the breadth of judicial opinion and the need for it to be revisited were also shown by the Supreme Court’s unusual direction that the appeal should be heard twice, the second time before an enlarged panel.

the Supreme Court’s recognition in Kirwan, based on O. 122, of that period as an “inflection point”. Accordingly, as matters stood at the time of the Hearing, there were cogent arguments on both sides and doubt as to how the law would develop. In the meantime, I remained bound by the Primor test.

13. In the circumstances I could (and perhaps should) have adjourned the original application pending the Supreme Court determination although by that logic all such applications then pending would also have had had to be adjourned, which would be undesirable. Neither I nor the parties suggested any such adjournment. I was anxious to avoid a repetition of the delay which previously bedevilled the litigation (bearing in mind the Supreme Court's comments). As matters stood at the end of the Hearing, I considered the issue finely balanced, but my provisional view was that the application would fail under the Primor test as then understood - the legal status quo was against the original application. However, I recognised the possibility of a different outcome depending on the outcome of the Supreme Court appeal. Accordingly, I determined that I should inform the parties of my provisional views (applying the Primor test as then understood) that the application should be dismissed and requiring the parties to progress litigation expeditiously. However, I confirmed to the parties that I would not immediately finalise my judgment and I expressly reserve the right “to enlarge upon or change the same”. By adopting that course on 11 April 2025 I intended to reflect further once the Supreme Court decision became available, which is why I stipulated that the views I expressed were provisional and subject to revision. In the event that Kirwan changed the assessment then it would doubtless have been necessary to give the parties the opportunity to make further submissions (and possibly call further evidence).

14. I did not anticipate a significant delay before what we now know as the Supreme Court judgment in Kirwan became available. In fact, it took longer than expected - the appeal was heard twice, was initially before by a panel of five which then determined that, in view of the importance of the issues and the prospect of possibly needing to revisit long-standing authority, it should be reargued before a seven member Court. Accordingly, the Supreme Court judgment was still awaited when these proceedings came back before me later in 2024 in the context of the defendant’s (unsuccessful) application for trial of a preliminary issue. At that stage, I noted that I had never finalised and delivered my judgment on the original want of prosecution issue. I would not have delayed the finalisation of my judgment indefinitely. In particular, I was conscious that if the defendant wished to appeal my decision, he would require a written judgment to formulate his appeal. Accordingly, I asked the parties whether I should finalise the judgment. Both agreed that I should do so. I agreed and proceeded accordingly.

Could the outcome have been different post Kirwan?

15. The situation changed utterly with the Kirwan judgment on 30 May 2025. As the evidence stood in April 2024, the defendant's prospects would have been better under Kirwan. Accordingly, the question arises as to whether the plaintiff can ask me to revisit my earlier order and judgment on the basis of the subsequent decision in Kirwan. I agree that the application would have stood a greater chance of success under the new test. In particular, in view of the length of the delay and exacerbating factors (the continued delay notwithstanding the Supreme Court’s 2019 observations and the fact that the plaintiffs were the beneficiary of the Injunction for a decade), there would have been no need for the defendant to show specific prejudice.

16. The majority in Kirwan also confirmed that the plaintiff generally has carriage of litigation and is responsible for its progress, and that a defendant’s inactivity is not a reason to refuse to dismiss for want of prosecution. However, as appears from the authorities cited, that was simply a restatement of existing principle. Furthermore, my concerns as to the defendant's conduct in these and related proceedings went beyond inaction. His threeyear delay in delivering its defence, while a factor, was not determinative. The biggest issue, which did not arise in Kirwan, was his guerilla campaign, including a multiplicity of litigation and a record of opposing uncontroversial applications, tactics which delayed progress generally (although sophisticated plaintiffs might have overcome such obstacles).

17. My acknowledgment that the original application would have stood a greater chance of success under the new test (on the basis of the evidence as of April 2024) is subject to an important qualification. If the Kirwan judgment had applied at that time, then the plaintiffs may have sought to file additional affidavits and to advance submissions in respect of points which they did not need to ventilate when the old test applied. Accordingly, it would be wrong to assume the hypothetical outcome if I had adjudicated the application in April 2024 on the basis of the Supreme Court decision in May 2025.

Jurisdiction to review previous decisions

18. Submitting that I had the jurisdiction to vary my previous judgement, the defendant relied on an unreported decision of Costello J (as he then was) in Irish Commercial Society Ltd v Plunkett [1986] ILRM 624 which relied on the English Court of Appeal decision in Purcell v Trigell Ltd [1971] I Q.B. 358, in which Lord Denning considered whether a plaintiff can appeal (to another court) an order originally made on consent. Lord Denning noted the wider scope to challenge orders made on interlocutory applications than final judgments. Plunkett is more analogous as it involved a liquidator’s application to set aside a consent order to furnish security for costs. As in this case, the Court was asked to amend its earlier order but on the basis of factual rather than legal developments. At the time of the original application, the newly appointed liquidator’s investigations were embryonic, leaving him no option but to agree to furnish security. Information subsequently emerged suggesting a fraudulent scheme to strip the company’s assets. Costello J dismissed the submission that the previous order could only be set aside on foot of a separate substantive action, noting the distinction between final and interlocutory orders, citing Ainsworth v Wilding 1896 1 Ch. 673, 677 and Lord Denning’s observation in Purcell that "the court always has control over interlocutory orders and may in its discretion vary or alter them….". Costello J concluded that it would be contrary to common sense and involve a considerable injustice to require a substantive action to be mounted to determine issues that could reasonably be determined by an interlocutory motion.

19. The plaintiffs cited the helpful discussion of the distinction between interlocutory and final orders at paras. 25 and 48– 49 of Delaney and McGrath on Civil Procedure, Delaney et al, Round Hall, 5th Ed, 2023 (“Delaney”) which, inter alia, noted the different ways Barron and Hardiman JJ approached the interlocutory versus final distinction in Minister for Agriculture, Food and Forestry v. Alte Leipzeiger Versicherung A.G [2000] 4 IR 32. I prefer the formulation of Hardiman J - for an order to be considered final "it is quite sufficient of the order in question finally disposes of a particular issue between the parties, at least where that issue was discreetly raised by some proper procedure."

20. Delaney noted that the Supreme Court in Alte Leipzeiger decided that the High Court judgment striking out proceedings for want of jurisdiction was a final rather than an interlocutory order (in the sense in which that term had been used in the (old) version of o.58 dealing with appeals from the High Court to the Supreme Court). The majority held that it was not an interlocutory order in that sense, so special leave was required before new evidence could be admitted. Delaney observed that, adopting the language of Hardiman J in Alte Leipziger, it could be said the decision of the High Court “finally disposes of a particular issue between the parties” as Kearns P. held that the proceedings must be dismissed insofar as they were statute-barred.

21. Hardiman J also cited an English Court of Appeal decision, Dale v British Coal Corporation [1992] 1 WLR 965. The plaintiff successfully sought a declaration that the limitation period should not apply to his action. An issue arose as to whether the decision was interlocutory, in which case the defendant required leave to appeal. The Court treated the declaration as final, as it finally determined any question of limitation. Significantly, the Court of Appeal noted that the High Court’s decision conclusively determined the limitation issue however it resolved the issue, so it was a final decision either way. Although Hardiman J did not ground his opinion on it (possibly reflecting the particular context in which the English issue arose), he described the Dale approach as “sound”, noting the Court’s finding that “the mode of determination was irrelevant if in fact the issue was finally determined for the purpose of the hearing in question. Its eventual conclusion was that: "If the effect is that an issue was finally determined for the purposes of the action, then its determination would, it would seem, count as a final judgment or order…”

22. In Leipziger itself, Hardiman J considered that the jurisdiction issue was likewise “independent of the merits of the cause of action and should be got out of the way conclusively and finally as early as possible”. He said that the Court should “focus on whether the jurisdiction issue, rather than the general issues in the litigation, had been finally determined” by the High Court judgment and concluded that the High Court order was final on the question of jurisdiction, subject only to an appeal.

23. Delaney also: a. listed examples of “final” orders (such as orders granting leave to issue execution, directing inspection, or trial of a preliminary issue or declining jurisdiction) and cited O'Dwyer v Daughters of Charity of St Vincent de Paul & Ors [2015] IECA

226 in which the Court of Appeal concluded that an order dismissing proceedings as statute barred was a final order.

b. Explains at paras. 25-79 & 25-80 that, in general, once a final order has been made and perfected, the trial judge has no jurisdiction to set aside or vary the previous order - the only remedy is to appeal. c. Notes Murray J’s rationale for the finality of orders in Riordan v Taoiseach & Ors [2000] IESC 61 and the exceptions noted in cases such as Greendale Developments Ltd (No 3) [2000] 2 IR 514.

24. As appears from a host of authorities, the jurisdiction to set aside final orders is confined to rare and wholly exceptional circumstances. For example, the plaintiffs cited observations of (Brian) Murray J in the (subsequent) Kirwan ruling on 14 October 2025 (the October Ruling) dismissing the defendant’s application to the Supreme Court for the recission of various aspects of its judgment dismissing his claim for want of prosecution. Murray J concluded that the dismissal for want of prosecution was a final order and could therefore only be varied in rare and wholly exceptional cases. He noted the extremely high threshold, citing his namesake’s comments in DPP v McKevitt [2009] IESC 29, stressing that it must be demonstrated that the order or judgement denied the applicant justice and breached his constitutional rights.

25. The parties also cited the decision of Simons J in G. v Judge of the District Court [2021] IEHC 386, which noted that, on most occasions, the appropriate remedy for a person aggrieved by a judgement was to appeal rather than to ask the original court to review its own decision. Parties are entitled to assume that, absent an appeal, a written judgement, which has been approved by the judge and published, is conclusive. At para. 10, Simons J noted the limited circumstances in which might be appropriate to invite a court of first instance to review its own judgement (and the examples given do not apply here).

26. Perhaps the authority which is most similar to the defendant’s application is the decision in Attorney General (SPUC (Ireland) Ltd) v Open Door Counselling Limited [1994] 2 IR 333, wherein the Supreme Court majority concluded that the Court could not vary its final order by virtue of a subsequent change in the law (the constitutional amendment concerning the right to travel to obtain an abortion). That controversial decision has not weathered well. The minority judgement gained greater traction in Greendale where the Supreme Court acknowledged the jurisdiction and duty to protect constitutional rights even when dealing with a final order, but it still emphasised the exceptional nature of the jurisdiction, sentiments echoed by McGuinness J in Bula v Tara Mines Ltd [2000] 4 IR 412 – the exceptional jurisdiction is invoked to protect constitutional rights or natural justice.

Analysis

27. The defendant has argued that, because at the end of the Hearing I expressed my views as provisional and reserved the right to revisit them, it remains open for me to do so. However, what I intended, and I think that this should have been clear to the parties from the outset, was that my oral ruling on 11 April 2024 was provisional and open to be revisited unless and until formalised in a written judgment. Once I had formalised my ruling in a written judgment, it was no longer open to me to amend it (save under the slip rule or in the limited circumstances applicable to any judgment or order).

The Original Judgment made this clear by warning in paras. 25 & 26 of the potential for future applications in the event of further slippage, necessarily implying that that was the only basis upon which a further want of prosecution application would be entertained. Although I and the parties remained aware that the Kirwan judgment would still be delivered and could change the law at some point, there was no suggestion in the Original Judgment that it would be subject to further revision when the Kirwan judgment was forthcoming. The defendant submitted that his right to appeal was prejudiced because an order was perfected on 25 April 2024 recording the dismissal of the original application, whereas my judgment was only published on 24 January 2025.

I do not recall being aware in April 2024 that the order was perfected at that time or, if so the terms of the particular order. It may have been better if the drawing up of the order had been deferred pending the (finalisation and) delivery of my written judgment, but it was presumably required to reflect the agreed directions to progress the matter in the meantime. While I am sure that the registrars would have drawn up the order to reflect their understanding of my ex tempore ruling, on reflection I consider that the terms of the order should also have recorded that the judgment on the motion itself was reserved at that time, or, if it referred to my oral ruling then it should also have noted my stipulation that that ruling was preliminary and subject to change and that my final judgment was reserved pending a written judgment.

If there had been an application under the slip rule at any time prior to the finalisation of my written judgment, then I would have been disposed to amend the order to clarify that issue. Equally, if the defendant had at any time asked me to give reasons for my judgment earlier so that he could progress an appeal I would have readily accommodated his request. That said, I doubt that the Court of Appeal would have refused to have entertain an appeal from my 24 January 2025 judgment purely on the basis of the order perfected on 25 April 2024. I would have expected the defendant (who, although not legally represented, is experienced and accomplished in the workings of the court and in representing himself) to have appreciated that it would be possible for him either: (i) to revert to me to seek the amendment of the 2024 order under the slip role; or (ii) to apply to the Court of Appeal for an extension of the time for an appeal.

He did neither.

28. For the reason noted in para.17 above, it would be wrong for me to determine to the hypothetical outcome if the Hearing or the Original Judgment had been resolved on the basis of the Kirwan test rather than the Primor test as previously understood. Subject to that significant caveat, however, the following non-exhaustive issues could be identified: a. In the context of the factors identified by the Chief Justice at para. 17 of his judgement in Kirwan, the time elapsed since the events giving rise to these proceedings and the periods of delay weigh heavily against the plaintiffs as do their failure to heed the Supreme Court's "observation" about the need to progress these proceedings and the fact that the plaintiffs enjoyed a significant litigation benefit (the Injunction) increasing their obligation to expedite matters. b.

In the light of the Chief Justice’s observations at para.26 in Kirwan, I would reiterate the conclusion in the Original Judgment that this case is not hugely dependent on oral evidence. There was no suggestion that that finding should be reviewed. Accordingly, while the defendant would not now be required to show specific prejudice given the lapse of time, I should reiterate my previous conclusion that it appears unlikely that the case will be hugely dependent on oral evidence but, to the extent it is, the passage of time maybe seems more likely to prejudice the plaintiffs. c.

Factors weighing against dismissal include the defendant's own conduct, not due to passivity but to tactics which could be seen as obstructive7. There is no suggestion that documentary evidence is unavailable, and the only specific prejudice identified by the defendant (over and above undeniable prejudice due to the passage of time) is the fact that equitable relief continued for longer than normal. However, that fact is somewhat mitigated by the evidence of the defendant’s apparent indebtedness to the plaintiffs and by the extent to which he may have adopted a strategy which delayed the proceedings and actively contributed to issues of which he complains.

As the Original Judgement noted, the defendant’s conduct is open to criticism not so much for acquiescence or inaction but for his adoption of tactics which had the effect of significantly delaying the litigation. I consider that that remains a relevant factor in exercising the inherent jurisdiction. The defendant helped to ensure that For the avoidance of doubt, there is no finding of abuse of process on the defendant’s part or anything of that nature – he availed of positions which were technically open to him, albeit they did not have any substance to them and resulted in the delay of the litigation as a whole.

Furthermore, he was entitled to issue other proceedings, but the tactics adopted appear to be a factor in the delay in the litigation and the receiverships as a whole.

the litigation did not progress, and such tactics seem to me to be as relevant as acquiescence.

29. As I have made clear I do not propose to determine the result if the Kirwan test was retrospectively applied to the original application. However, the foregoing gives some indication of the issues that would arise. The new test would be more favourable to the defendant than the Primor test, but a favourable outcome for either side could not simply be assumed. Having set the scene in that regard, I will now consider the extent to which I can or should revisit my previous ruling in the light of Kirwan.

30. Contrary to the defendant’s submission, I am satisfied that my reference at the Hearing to my conclusions being provisional and subject to change was spent once I delivered my January 2025 judgment. Secondly, if the defendant wished to take any point in respect of the order as drawn following the Hearing, then he should have made an appropriate application when he became aware of it – at the time of the Original Judgment. Thirdly, as is shown by the Supreme Court decision in Greendale and by a succession of further rulings resting with what is presumably the final Kirwan ruling (the October ruling), it is only in exceptional circumstances that the court can revisit a final order or judgment. Of course, Greendale and Kirwan concerned the Supreme Court’s jurisdiction to revisit its own earlier decisions, but in my view similar principles apply to the circumstances in which first instance courts can revisit their own earlier decisions (as opposed to exercising appellate responsibilities in respect of other courts) and I would respectfully adopt the analysis of Simons J in G in that regard. The High Court is, of course, subject to appellate supervision, but such rights of appeal were not invoked so they do not affect the current analysis except to the extent that their very existence shows the way in which unsuccessful litigants should normally challenge decisions with which they disagree. In principle, the question as to whether and in what circumstances any court can reconsider an issue which it has already finally determined is the same whether the court in question is the court of first instance or an appellate court.

31. The authorities cited show that the court has greater (but still limited) latitude to revisit decisions which have only been dealt with on an interlocutory basis. This makes sense. Interlocutory rulings deal with the proceedings pending trial in a dynamic and unfolding situation, such as on an injunction application. Other such orders are intended to progress the case to trial, ensuring that the issues are sufficiently identified in the pleadings and that all necessary discovery and other evidence was provided. Such interlocutory orders respond to a developing situation and may require revision if they prove impractical or inappropriate or if circumstances change. Indeed, the Rules of the Superior Courts expressly provide for such revision in the case of discovery. A decision on an issue (such as, for example, whether a party should have to provide security for costs) may need to be revisited if circumstances change. That said, the courts are reluctant to revisit even interlocutory decisions without good reason, and normally it will be necessary for the party seeking the variation of an interlocutory order to satisfy the court of a change in circumstances or to adduce evidence which could not reasonably be expected to have been available at the original hearing. However, it is far more difficult to justify reviewing or amending a determination of the court which represented the final adjudication of a particular application or issue.

32. If I had acceded to the original application and dismissed the proceedings for want of prosecution, then that would clearly have been a final order. Like any other order (final or interlocutory), it could have been appealed. However, the plaintiffs could not have asked me to reopen the issue and vary my ruling save in the limited circumstances referenced above. The October Ruling confirms that a decision to strike out proceedings for want of prosecution is a final ruling. It follows that a converse ruling, to decline to strike out the claim must, as a matter of logic and fairness, also be deemed a final ruling and this would also be consistent with Dale.

The particular application has been resolved and cannot be changed except on appeal or in the limited circumstances applicable to final rulings.

33. Of course, if, for example, the plaintiffs slipped back into their former torpor the defendant could bring a fresh application to strike out the proceedings (and/or lift the injunction) and such an application would be virtually assured of success. Very little would be needed to tip the scales. However, that would be a new application reflecting further developments in the litigation up to the point that the application was brought. Unlike the current application, it would not be a “do-over” of the earlier application on the basis of jurisprudence which was not available to either side or the Court on the first occasion.

34. Like the Supreme Court’s decision in Kirwan to dismiss the proceedings for want of prosecution, I consider that the Original Judgment confirming my rejection of the application and the reasons for that rejection was a final decision in respect of that application. It was amenable to appeal (but the appeal is now out of time save with leave). Accordingly, I consider that my jurisdiction in respect of that application is spent, and I am functus officio save in the wholly exceptional circumstances in which a court can review its own decision. None of the traditional circumstances (such as fraud) apply here.

35. I accept the plaintiffs’ submission that, even if the defendant is correct that there could have been a different outcome had the original judgement been delivered after Kirwan, that is not sufficient to establish that the Original Judgement denied the defendant justice or breached his constitutional rights. The Original Judgment was delivered in accordance with the then understanding of the law. The subsequent evolution of the law does not provide a basis for me to vary that judgment. If the defendant disagreed with the judgment, his remedy was to appeal.

36. I also accept the plaintiffs’ submissions that, even if the original judgement was viewed as an interlocutory ruling there has been no factual development which would justify reopening the decision. The only real ground relied upon was the legal development, but I am not satisfied that I could reopen the decision on that basis in the circumstances.

37. Unfortunately for the defendant, the subsequent clarification of the legal position neither requires nor permits the reopening of earlier decisions in separate proceedings and between different parties, save in the course of the normal appellate process. There is a need for certainty in litigation. In ease of the defendant I delayed my judgment, effectively reserving my decision for nine months before finalising it with his assent. In retrospect, it would have been to the defendant’s benefit if I had continued to reserve my judgment for another few months. However, once I did finalise it, then the defendant could have challenged it through the usual appeal process, and only through that process (save for wholly exceptional circumstances which have not been established).

38. For courts to revisit earlier final judgments in such circumstances would be contrary to the public interest. It would potentially mean that any perceived legal development in one case could necessitate reopening all previous unrelated cases in which similar issues had arisen but where rights of appeal had not been asserted at the appropriate time. The common law is organic, evolving over time. The Primor test itself evolved from earlier authorities and was applied in different ways, as can be seen in the judgments listed in my 24 January 2025 judgment and in the detailed summary of the jurisprudence by Hogan J in Kirwan. The latter

decision is inherently unlikely to be the very last word on the subject as the Supreme Court itself acknowledged. Courts of first instance cannot anticipate future changes to established jurisprudence - they must apply legal principles as they stand at the time, which is what I did in my 24 January 2025 judgment. It is only if the change of the law is of a nature which shows that it would otherwise be fundamentally unjust or a breach of constitutional rights that previous decisions might need to be revisited. Although the Notice of Motion cited Articles of the Constitution and Rules of the Superior Courts which I have duly considered, the provisions cited do not, in my view, advance his submission, nor were they pressed in oral argument.

39. It should also be noted that the plaintiffs could not have asked me to reconsider my judgment if the converse situation had arisen. As I have noted, the Supreme Court could conceivably have taken a different tack in Kirwan rendering it more difficult in practice for a defendant to secure a dismissal without, for example, showing specific prejudice. This was, for example, a view cogently expressed in the dissenting judgment of Collins J. However, if I had dismissed the proceedings for want of prosecution and the Supreme Court had subsequently made the Primor test more stringent, rendering it more difficult to grant such an application, then, while the plaintiffs could have exhausted their rights of appeal, it would not have been open to them to ask me to revisit my judgment in the light of the Supreme Court ruling. The plaintiff's only remedy in that scenario would have been to appeal. The defendant’s remedy must logically be the same. It is not open for me to review or reconsider my 24 January 2025 ruling. It is for the Court of Appeal to determine whether there is any basis to grant an extension of the time within which to bring an appeal in the unusual circumstances of the case. I express no opinion on that issue.

40. In the circumstances, I must reject the defendant's invitation to reconsider my previous judgment in the light of Kirwan. Nor do I consider that I have any basis to re-revisit the judgment in the light of Tweedswood (but I would be disinclined to do so on that basis in any event because Tweedswood did not change the law – it aligned with the Original Judgment in any event).

41. Any application to me at this point must be determined based on the facts as they now stand; the plaintiffs’ Damascene diligence since April 2024 weighs against the reliefs sought by the defendant. New evidence or a change in circumstances would be required before I would have any basis to revisit my previous decision. The public interest would be best served by ensuring these proceedings are listed for trial at the earliest possibility, finally concluding this long-running saga.

42. Finally, I will deal with a discrete issue raised by the defendant, namely, the plaintiffs’ supposed breach of the Supreme Court’s directions at the time of the resolution of the appeal in respect of the interlocutory injunction. At the December 2025 Hearing, a question arose as to the plaintiffs’ extraordinary and, in my view, inappropriate and unreasonable failure to disclose to the defendant what rents had been collected. With my “encouragement”, the plaintiffs belatedly agreed to furnish details of rents collected. Such information should have been made available at reasonable intervals in the first place. However, since it has been forthcoming, the defendant has expressed concern that rents received have been dispersed rather than being retained by the plaintiffs, whereas the plaintiffs maintain that they are entitled to use the rents to meet the cost of managing and safeguarding the property. Accordingly, the current issue concerns whether, as the plaintiffs maintain, the rents were to be retained pending trial. The defendant relies on language in the Supreme Court judgment and submits that in a previous affidavit the plaintiffs’ solicitor agreed that the effect of the Supreme Court order is that the receiver would hold the rental monies pending trial (but I am not convinced by that reference).

43. As the plaintiffs observe, immediately after the key passage relied upon by the defendant, Clarke CJ stipulated that the parties would be heard further on the terms of the order and that that is what happened and determined the receiver’s obligations. I expect that the Court’s concern was to ensure that the properties were not sold pending trial, and they accepted by the plaintiffs’ undertaking. The Court clearly envisaged that rents would be payable to the receivers pending trial. The defendant acknowledges that the Supreme Court did not accept his counsel’s submission that rents should be held in escrow or paid into court. No principled objection has been identified by the defendant to the way in which the rent has been used in practice (to pay for insurance, security, property management fees etc). I doubt that the Supreme Court would have restricted the use of the funds for such purposes.

44. While the defendant relies on the judgment, that was not the Supreme Court’s last word. The plaintiffs’ position was set out in the correspondence between the judgment and the final order. The Court heard submissions from counsel from both sides and determined the terms of the final order. That determination supersedes the tentative view expressed in the judgment. I must proceed on the basis of the Court’s ultimate order. Having reviewed the correspondence and the terms of the order, it is not evident to me that there is any basis on which to impugn the plaintiffs’ actions. In any event, I see no benefit in spending the resources of the party or the Court investigating the issue at this time. The action is ready for trial. If it turns out that the receivership was invalid, then the defendant can seek whatever reliefs would arise from any such decision. He is protected by the plaintiffs’ undertaking as to damages. There is no suggestion that damages would not be an adequate remedy. Accordingly, even apart from the fact that the terms of the order appear consistent with the plaintiffs’ position, there would be no utility in addressing the issue at this stage in any event.

Conclusion

45. In the circumstances, I will dismiss the application in its entirety. In normal course the presumption would be that the plaintiffs, having been substantially successful, should be entitled to their costs. However, it may be appropriate to award no costs in the circumstances. If either side wishes to apply for costs, they may file brief submissions (2000 words or less) within seven days of this judgment, and the other will have a corresponding period within which to respond. In the absence of any such submissions the order will be finalised, dismissing the application with no order as to costs. In the event of any such submissions, I may deal with costs on the papers or, if appropriate, the matter will be listed for brief oral submissions.

Representation

Garvan Corkery SC and Andrew Whelan BL, instructed by JRAP O’Meara, for the Plaintiffs Gerard Scriven, Defendant, appearing as a Litigant in Person.