AN CHÚIRT UACHTARACH
Dunne J.
Charleton J.
O'Malley J.
S:AP:IE:2023:000001
[2025] IESC 21
BETWEEN
BRENDAN KIRWAN
Plaintiff/Appellant
AND
MARGUERITE CONNORS TRADING UNDER THE STYLE OF MJ O'CONNOR SOLICITORS, MJ O'CONNOR SOLICITORS, EAMONN BUTTLE, FILBECK LIMITED, NORMAN BUTTLE, MARY BUTTLE, HILARY BUTTLE, JOHN O'LEARY TRADING UNDER THE STYLE OF MJ O'CONNOR SOLICITORS, BRÍD O'LEARY TRADING UNDER THE STYLE OF MJ O'CONNOR SOLICITORS
Defendants/Respondents
JUDGMENT of Mr. Justice Maurice Collins delivered on 30 May 2025
PRELIMINARY
1. The Court today announces an "adjustment" of Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459 ("Primor"). In reality, however, today marks Primor's demise.
Primor and prejudice
2. Primor (which has its roots in earlier authority, going back as far as this Court's decision in Dowd v Kerry County Council [1970] IR 27 ("Dowd") and the decision of the Court of Appeal of England and Wales in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 ("Allen")) was never particularly loved and, despite the fact that (according to vLex Justis) it has been cited in some 440 subsequent cases, few will mourn its passing. Even so, I am not persuaded that the "adjusted" test announced today will better serve the interests of justice.
3. I agree that there were difficulties with Primor and/or with how it has come to be understood and applied. Some of these difficulties are inherent in any post-hoc, ad hoc dismissal regime, whatever its particular calibration. Fact dependent discretionary adjudications as to whether, in any given case, the balance of justice favours permitting an action to proceed to trial or favours dismissal consume significant judicial (and litigant) resources, as well as being inherently unpredictable in outcome. Active case management, operating in a framework of clear and prescriptive rules, appears to me to be a much more effective means of ensuring that proceedings are brought to a conclusion "within a reasonable time" (as will be statutorily mandated by section 11 of the Court Proceedings (Delays) Act 2024 ("the 2024 Act") once that provision is commenced, reflecting the provisions of Article 6(1) ECHR which already has legal effect in the State pursuant to the European Convention on Human Rights Act 2003 [1]). [2] Shortening the limitation periods for bringing actions in tort and in contract would also make a significant contribution to reducing the period between the alleged wrong and adjudication. [3]
4. Primor compounded these difficulties by failing to clearly articulate the test for dismissal. Leaving aside its adoption of "inordinate and inexcusable delay" as the relevant jurisdictional gateway (forcefully criticised by my colleagues for disregarding the provisions of Order 122, Rule 11 RSC), the threshold for dismissal was not articulated as clearly as it might have been. The passage from the judgment of Hamilton CJ (at pages 475-476 of the report) that is frequently cited as the "Primor test" is in truth something of a laundry list of factors, without any real guidance as to how those factors interact or what their relative weighting should be. Nonetheless, as I read the decision in Primor, it identifies as a fundamental question " whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant" (page 476(vi); see also 475(d)(ii)). That is reinforced by Hamilton CJ's later statement that prejudice caused by the plaintiff's delay is a "fundamental ingredient": where the prejudice is such that "a fair trial between the parties cannot now be held", the proceedings should be dismissed (at 494), though it is clear also that prejudice was not limited to what may be called "fair trial prejudice" (476(vii)). A consistent theme of Primor is that the remedy of dismissing proceedings on the basis of delay/want of prosecution is available only where it would be "unfair to the defendant to allow the action to proceed" (see e.g. at 486) or, as the former Chief Justice put it elsewhere, whether, by reason of delay, the claim is one which the defendant "could not reasonably be expected to defend" (492). That is, evidently, a high threshold for dismissal.
5. That reading of Primor is consistent with the pre-Primor jurisprudence cited with obvious approval in the judgments of Hamilton CJ and O' Flaherty J. These include the decisions from England and Wales referred to by Murray J in his judgment: Allen, Birkett v James [1978] AC 297 and Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197. In Allen, the Court of Appeal (per Diplock LJ) characterised a dismissal order as "draconian" (a characterisation repeated many times in the Irish authorities) and stated that such an order should not be made "without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible..." (259). Disobedience to a peremptory order of the court would constitute "intentional and contumelious" default (ibid). In his judgment, Salmon LJ identified the third element that had to be established on an application to dismiss on grounds of delay (in addition to inordinate and inexcusable delay) as that the defendants were "likely to be seriously prejudiced by the delay", whether in respect of the trial of the issue between them and the plaintiff, or between themselves or between themselves and third parties (268). Even when all three elements were established, the court had to exercise its discretion and strike a balance between the interests of plaintiff and defendant (269).
6. In Birkett v James, the House of Lords approved Allen, noting that the principles laid down in Allen had been applied ever since: 318E-G (per Lord Diplock) and 330B-C (per Lord Salmon). A number of discrete issues were canvassed in Birkett v James, with the House of Lords holding that actions should not ordinarily be dismissed where the relevant limitation period has not expired (because the plaintiff can, in such circumstances, issue fresh proceedings), emphasising that there must in every case be post-commencement delay giving rise to prejudice (because to hold otherwise would be to superimpose a further limitation period on top of that prescribed by Parliament) and holding that the fact that the plaintiff may have an alternative remedy against his or her solicitor is not a relevant consideration in deciding whether to dismiss an action for want of prosecution. Significant as those issues may be (and it is notable that, in this jurisdiction, a different approach was taken to the requirement for post-commencement delay in O' Domhnaill v Merrick [1984] IR 151 and the cases following from it), the principal importance of Birkett v James is its unambiguous confirmation that a defendant must establish "serious prejudice" before an action may properly be dismissed, even where the plaintiff has been guilty of inordinate and inexcusable delay.
7. In Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197 the House of Lords was invited to depart from its decision in Birkett v James on the basis - so it was said - that the Birkett v James regime had failed to achieve the timely conduct of litigation by plaintiffs and the reduction of delay and so the House of Lords was invited to establish the principle that actions should be struck out for inordinate and inexcusable delay simpliciter, without any requirement to establish prejudice. Giving the only speech, Lord Griffiths robustly rejected that invitation:
"... [counsel] submits that once the limitation period has expired so that the plaintiff cannot commence a fresh action, inordinate and inexcusable delay in the conduct of the litigation should be a ground for striking out even though there can be a fair trial of the issues and the defendant has suffered no prejudice from the delay. What would be the purpose of striking out in such circumstances? If there can be a fair trial and the defendant has suffered no prejudice, it clearly cannot be to do justice between the parties before the court; as between the plaintiff and defendant such an order is manifestly an injustice to the plaintiff. The only possible purpose of such an order would be as a disciplinary measure which by punishing the plaintiff will have a beneficent effect upon the administration of justice by deterring others from similar delays. I have no faith that the exercise of the power in these circumstances would produce any greater impact on delay in litigation than the present principles. There are still many cases that are struck out for want of prosecution which shows that the deterrent effect of Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229, has not been as successful as was hoped for, and I see no reason to suppose that the deterrent effect of extending the principle to cover this new situation would be likely to be any more successful. At least it can be said that under the present principle such limited success as has been achieved has been with a view to protection of the defendant. To extend the principle purely to punish the plaintiff in the illusory hope of transforming the habits of other plaintiff solicitors would, in my view, be an unjustified way of attacking a very intractable problem. I believe that a far more radical approach is required to tackle the problems of delay in the litigation process than driving an individual plaintiff away from the courts when his culpable delay has caused no injustice to his opponent. I, for my part, recommend a radical overhaul of the whole civil procedural process and the introduction of court controlled case management techniques designed to ensure that once a litigant has entered the litigation process his case proceeds in accordance with a time table as prescribed by Rules of Court or as modified by a judge: see the Civil Justice Review, Report of the Review Body on Civil Justice (1988)..." (1207C-H; my emphasis). [4]
8. These decisions were all opened to the Court in Primor. Furthermore, and in any event, prejudice is a leitmotif running through the pre-Primor Irish authorities (unsurprisingly so, given that many of those authorities also rely on Allen). In Dowd, prejudice - in the form of missing witnesses - was the decisive factor in the High Court. In circumstances where the relevant witnesses had been traced before the plaintiff's appeal came on before this Court, the prejudice that had been relied on by the defendants was "virtually non-existent" and it would have been "unjust" to prevent the plaintiff's case proceeding (per Ó Dálaigh CJ, at 41). In his judgment (with which Walsh and Budd JJ agreed), the former Chief Justice characterised the observations of Diplock LJ in Allen as "wholly admirable", rejecting the "more unbending" observations of Lord Denning MR in another of the cases cited to the court. [5] Prejudice - or the absence of it - was also a decisive factor in O' Reilly v Córas Iompair Éireann [1973] IR 278 (where again Allen was cited with evident approval). [6]
9. "Fair trial" prejudice was also at the heart of the analysis in Sheehan v Amond [1982] IR 235, O' Domhnaill v Merrick [1984] IR 151, Toal v Duignan (No 1) [1991] ILRM 135 and Toal v Duignan (No 2) [1991] ILRM 140. Even if these cases are to be discounted as being early instances of a different (if related) jurisdiction - what in Manning v Benson & Hedges [2004] IEHC 316, [2004] 3 IR 556 Finlay Geoghegan J called the jurisdiction to dismiss "in the interests of justice" - Rainsford v Limerick Corporation [1995] 2 ILRM 561 (which, although only reported in 1995, was decided in July 1979) ("Rainsford"), Celtic Ceramics Ltd v Industrial Development Authority [1993] ILRM 248 and Hogan v Jones [1994] 1 ILRM 512 all centre on the issue of prejudice. Thus, for instance, in Hogan v Jones, Murphy J stated that the "draconian penalty" of dismissal was not an order made with a view to punishing a plaintiff for his dilatoriness: such an order was "made only where it is necessary to protect the legitimate interests of the party sued and in particular his constitutional right to a trial in accordance with fair procedures" (at 518). That clearly refers to fair trial prejudice.
10. Nothing in the judgments in Primor suggests that the Court intended to depart from the prior jurisprudence or dilute the requirement for serious prejudice (typically, but not limited to, fair trial prejudice) as a sine qua non for the exercise of the court's power of dismissal for want of prosecution/delay. Properly understood, it seems to me that, in listing the factors that he did at pages 475-476 of the report, Hamilton CJ was not suggesting that prejudice was merely one factor amongst many, the absence of which in any given case might not necessarily preclude an order for dismissal. Rather, he was, indicating that even where some serious prejudice was established, a court might nonetheless conclude that the overall balance of justice favoured permitting the plaintiff to proceed with their action. The assertion of a residual discretion of that kind is, of course, entirely consistent with the approach taken in Allen and approved in Birkett v James.
11. However, Primor has not been consistently understood or applied in that way. While many of the subsequent authorities continue to emphasise the need for a defendant seeking the dismissal of an action to establish real concrete prejudice - see for instance the decisions of this Court in Comcast International Holdings Incorporated v Minister for Public Enterprise [2012] IESC 50 ("Comcast"), Desmond v Doyle [2013] IESC 59 and Mangan v Dockeray [2020] IESC 67) - there are also authorities suggesting that only "moderate" prejudice need be established (Stephens v Paul Flynn Limited [2008] IESC 4, [2008] 4 IR 31, affirming [2005] IEHC 148) and more recently it has been suggested that "marginal prejudice" will suffice and that, indeed, an action may be dismissed even in the absence of any evidence of prejudice (Millerick v Minister for Finance [2016] IECA 206, §32). This evident dilution of the Primor threshold has largely been justified by the invocation of Article 6 ECHR: see, for instance, Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290, Stephens v Paul Flynn Limited, Rodenhuis and Verloop v HDS Energy Limited [2010] IEHC 465, [2011] 1 IR 611 . However, the relevance of Article 6 in this context has also been the subject of heated debate: Desmond v MGN Limited [2008] IESC 56, [2009] 1 IR 737, as well as McBrearty v North Western Health Board [2010] IESC 27. That debate aside - and for the reasons I set out later, it seems to me that Article 6 ECHR is indeed relevant in this context, though not in the manner suggested in Gilroy v Flynn - the mutating and uncertain nature of the applicable threshold has undoubtedly given rise to significant problems in practice. Courts have understandably been uncertain as to what test to apply and/or how it should be applied. Judicial suggestions that proceedings might be dismissed where even "moderate" or "marginal" prejudice was established - or indeed that the requirement for prejudice might at some point be dispensed with altogether - have incentivised defendants to make dismissal applications, many of them unsuccessful, absorbing significant judicial resources that could readily have been put to more productive use. But all of that points to the need to clarify Primor, rather than to cast it away completely.
12. As confusing and inconsistent as the authorities may be, as I understand the law, it has always been the case (at least prior to the Court's decision today) that the dismissal of an action requires something more than delay/want of prosecution simpliciter (or certainly so where the plaintiff evinces an intention to proceed with the action). The defendant must also establish some material prejudice. Usually that involves some form of "fair trial" prejudice but it is not limited to such prejudice: the authorities make it clear that other forms of prejudice to a defendant arising from a plaintiff's failure to prosecute their claim with reasonable diligence may suffice. The authorities also make it clear that, even in the absence of any specific concrete prejudice - the death of a witness, the loss of documentary records or the like - general prejudice may suffice (depending on all other relevant considerations). Even so, dismissal of an action "is, and should be seen as, an option of last resort" and the power to dismiss should not be exercised "unless, on a careful assessment of all the relevant facts and circumstances, it is clear that permitting the claim to proceed would result in some real and tangible injustice to the defendant": see my judgment (Ní Raifeartaigh and Pilkington JJ agreeing) in Cave Projects Limited v Gilhooley [2022] IECA 245, §§35-37. For my part, I am not persuaded that the requirement to establish some real and significant prejudice or injustice should be discarded.
The Court's New Test - Abandoning Prejudice
13. However, the Court today decides that prejudice is no longer a sine qua non for dismissal (O' Donnell CJ, §26; Hogan J, §§170, 173, 175, 178 & 207 and Murray J, §§52-54). Want of prosecution simpliciter will suffice to justify the dismissal of proceedings, with a sliding scale of presumptions triggered by different periods of delay (2 years, 4 years, 5 years) fashioned from whole cloth. Only time will tell whether this new test - which my colleagues also emphasise does not import any "automaticity", requires case by case assessment having regard to all the facts and circumstances, and is not to be applied in a "mechanical" way - will provide greater consistency of outcome than Primor has and whether it is more effective in deterring delay on the part of plaintiffs (and their advisors). But on any view the abandonment of any requirement for prejudice to be established represents a very significant departure from a consistent line of authority, both here and in England and Wales. It means that the courts may dismiss claims which may yet be fairly tried, and there is no other concrete prejudice to which the defendant can point, without any adjudication on the merits.
14. I do not, with great respect to the Chief Justice, think that these difficulties can be avoided by suggesting that, where there is delay, or sufficient delay, on the part of the claimant, dismissal of the proceedings can be justified even in the absence of prejudice because in such circumstances, it is not fair to the defendant to require them to defend the claim (§30). If the defendant can defend the claim effectively, how does fairness to the defendant require the dismissal of the claim? The answer offered by the Chief Justice - that delay is, in itself necessarily prejudicial to and/or unfair to defendants (§33) - is not persuasive in my view.
15. I respectfully disagree with the Chief Justice when he suggests that the application of the "rules" of dismissal announced today do not raise any constitutional issue or that the Constitution does not require any presumption in favour of the claim or against dismissal (§25). I also disagree with him that Primor is to be faulted for proceeding on an "assumption" that the jurisdiction to dismiss is an interference with the right of access to court and accordingly required weighty justification (§23). That "assumption" is, in my view, a well-founded one and one which runs consistently through the post-Primor case-law. As well as the right of access to the courts (characterised as "the primary vehicle by which both personal and all fundamental constitutional rights can be articulated and given effect to" by McKechnie J in Brandley v Deane, §48), the plaintiff's right of action may itself be a constitutionally protected right: see the discussion in my judgment in Delaney v Personal Injuries Assessment Board [2024] IESC 10, [2024] 1 ILRM 349, §§313 et seq. The dismissal of an action on grounds of delay - whether located in the inherent powers of the court or in Order 122, Rule 11 RSC - is a terminal interference with such rights. Where a plaintiff has failed to comply with express orders made by the court, one can readily understand the justification for dismissal (but, even then, the court would have to consider whether dismissal was proportionate). Again, where the delay has caused material prejudice to the defendant - whether by impairing the defendant's capacity to effectively defend the claim against them or otherwise - such an interference can readily be justified. But absent any such prejudice, what is the justification for dismissal?
16. It cannot, in such circumstances, be a concern to do justice to the defendant. As Lord Griffiths stated in Department of Transport v Chris Smaller (Transport) Ltd, "[i]f there can be a fair trial and the defendant has suffered no prejudice, [dismissal] clearly cannot be to do justice between the parties before the court; as between the plaintiff and defendant such an order is manifestly an injustice to the plaintiff" (1207C-D). Neither can it plausibly be suggested that the terms of Order 122, Rule 11 dictates such an approach. In the first place, Rule 11 is wholly silent on how the High Court should exercise the power to dismiss for want of prosecution. Secondly, such Irish authority as there is suggests that prejudice is an element of the assessment under Order 122, Rule 11 in the same way as it is an element of the Primor jurisdiction: Collins v Bus Átha Cliath (Unreported, Supreme Court, 22 October 1999). [7] The Northern Irish cases - in which this issue has been the subject of significant debate - are expressly to that effect: see, for example, Flynn v Department of the Environment [2006] NIQB 103 and, more recently, Sterritt v Telegraph Media Group Ltd [2022] NIQB 43, §15.
17. Equally, the available decisions relating to earlier versions of Order 122, Rule 11 do not appear to suggest that the power to dismiss was exercised on the basis of delay/want of prosecution simpliciter. Thus in Kennedy v Gregg (1854) 4 IR Com Law Rep 132, the decisive factor appeared to be that the action was a challenge to the appointment of a Clerk of the Peace who had, by the time the application came before the High Court, been in office for 9 or 10 years so that, in the Court's view, it would be "a case of most desperate speculation" for the plaintiff to proceed (at 134). O' Callaghan v O' Callaghan (1861) 12 ICLR 46 was a classic case of fair trial prejudice - as a result of the plaintiff's delay, the defendant had "lost his witnesses" (at 47).
18. What is said here is that dismissal on grounds of delay/want of prosecution simpliciter is justified by wider considerations relating to the administration of justice and the negative impact of delay on the justice system (O' Donnell CJ, §23). I agree that the wider interests of justice are relevant in this context and I agree that reducing litigation delay and ensuring that, as far as practicable, proceedings are brought to a conclusion "within a reasonable time" (the objective enshrined in section 11 of the 2024 Act, reflecting the provisions of Article 6(1) ECHR) are important objectives. I am not, however, persuaded that those objectives justify the departure from Primor. Neither am I persuaded that the Court's new test is best calculated to achieve those objectives because that test effectively incentivises defendants to do nothing about plaintiff delay.
Letting Sleeping Dogs Lie
19. Going back as far as Dowd, Ó Dálaigh CJ observed that, while the adage about letting sleeping dogs lie may be wise, "it is not specifically conceived to advance the cause of justice". Litigation was, he observed, a two-party operation and "the conduct of both parties should be looked at" (pages 41-42). However, notwithstanding subsequent decisions such as Hogan v Jones (in which Murphy J cited extensively from the judgment of Cross J in Calvert v Stollznow (Supreme Court of New South Wales, Unreported, 1 April 1980)) and Dunne v ESB [1999] IEHC 199, the post-Primor cases developed a distinction between what in Rogers v Michelin Tyre plc [2005] IEHC 294 Clarke J (as he then was) characterised as "inactive delay" on the part of a defendant (a failure to take steps to bring the proceedings or complain about the delay) and "active delay" (failing to take a required procedural step such as delivering a defence or making discovery), with little or no weight to be given to "inactive delay" on the part of the defendant: Campbell v Geraghty [2022] IEHC 241, §44 (Butler J).
20. The utility of that distinction was doubted by McKechnie J in Comcast and he expressed the view that, in the event of any adjustment of the Primor test, " that mutuality of adjustment must apply and that a greater sense of awareness must also attach to the defendant's position, in whatever way that may have come about. Otherwise to say that justice is a two way process is entirely hollow " (§39). Similarly, Clarke J observed that if there was to be a "tightening up" of the rules in order to achieve " a more time-conscious regime to ensure that proceedings are determined in a timely fashion " then it followed "that the need for such a regime places obligations on defendants as well " (§3.11).
21. In England and Wales, the Court of Appeal has made it clear that it is no longer appropriate to let sleeping dogs lie. Thus, "a defendant cannot let time go by without taking action and then later rely upon the subsequent delay as amounting to prejudice and say that the prejudice caused by the delay is entirely the fault of the claimant" (Asiansky Television Plc v Bayer-Rosin (A Firm) [2001] EWCA Civ 1792, §48, per Clarke LJ). Such an approach was, Clarke LJ went on, inconsistent with the ethos underlying the CPR and in particular the principle of co-operation between the parties. While the RSC may not expressly contain any such principle, courts can and do expect parties to co-operate. Similarly, in Liquidator of Wing Fai Construction Company v Yip Kwong Robert (8 December 2011), the Hong Kong Court of Final Appeal (per Ma CJ) stated that the attitude of letting sleeping dogs lie is unacceptable, adding that an "'all or nothing' approach whereby a defendant can sit idly by while delays accumulate in the hope that, if of sufficient length, the delay can lead to a chance to apply to strike out for want of prosecution, is nowadays in my view, a deeply unattractive approach" (§47). Again, that statement relied on rules (the CJR) which have no direct equivalent in this jurisdiction but that does not detract from its force or relevance in this jurisdiction in my view. [8]
22. Unfortunately, while the Court today significantly "tightens up" the rules as far as plaintiffs are concerned, it gives its blessing to defendants to continue to let sleeping dogs lie, even though that practice is clearly not calculated to advance the interests of justice.
23. As Clarke J observed in Comcast, the Rules of Court "provide various mechanisms which allow a defendant, who is concerned by the slow pace of litigation, to seek to have the process accelerated" (§3.11). The same point was made by Murphy J in Hogan v Jones, where he stated that "insofar as the defendants assert a constitutional right to have the litigation conducted in accordance with fair procedures, it seems to me that they and all litigants must view the Rules of the Superior Courts and the relevant legislation (including in particular the statutes of limitations) as part of the structure designed to give effect to the constitutional right. The constitutional right to fair procedures is protected not only by the power of the court to dismiss a case for want of prosecution but also by the other interlocutory steps or procedures which protect either party from undue delay by the other" (520).
24. Where a plaintiff fails to prosecute a claim, the defendant can seek the assistance of the court. If, for instance, there has been no proceeding in an action for 2 years, the defendant may bring an application pursuant to Order 122, Rule 11. Rule 11 gives a power to dismiss the proceedings but also gives a broad power to the High Court to "make such order and on such terms as to the Court may seem just". Thus, the court may give directions for the purpose of ensuring that the proceedings are progressed. In circumstances where such an application arises from the default of the plaintiff, then the defendant should ordinarily have their costs. In the event of any further default on the part of the plaintiff - particularly any failure to comply with a peremptory order - the proceedings are likely to be dismissed.
25. In my view, it is clearly in the interests of justice that the court's intervention should be sought in this way. In the absence of a formal system of case management - and as Clarke J explained in Comcast, it may not be practicable to have active case management in respect of all categories of litigation - such procedures "enable justice to be done - reasonably promptly. They remove the possible prejudice of any delay caused by a plaintiff's camp and acquiesced in by the defendant's camp" (per Cross J in Calvert v Stollznow).
26. But, it may be said, that may not be in the interests of the defendant and it would be unfair to expect a defendant to take "positive steps to prod a plaintiff into action" given that it is the plaintiff, not the defendant, that is in default (per Butler J in Campbell v Geraghty, §44). But that objection overlooks the fact that the plaintiff and defendant have an important common interest. Delay is not, in itself, in the interests of the defendant. It is only where delay reaches the threshold for dismissal (whether that is the Primor threshold or the less exacting threshold adopted by the Court today) that it might be said to be in the interests of the defendant. However, even on the Court's new test, there are likely to be many cases involving significant delay where dismissal is not appropriate or available and where the proceedings could have been heard more expeditiously if the court's assistance had been sought. More fundamentally, if the justification for the Court's revised approach are the wider considerations relating to the administration of justice and the negative impacts of delay on the justice system (as I understand to be the position), why should the court give decisive weight to the interests of defendants in this context?
27. In his judgment, Hogan J refers with evident approval to Dowd and to Comcast (citing a passage from the judgment of McKechnie J which sets out the passage from Hogan v Jones set out above) ( §§ 195-196). He expresses the view that, where a professional defendant has not taken timely steps to bring an action on for hearing and then seeks to rely on damage to their professional reputation as a basis for seeking the dismissal of the action, little weight should be given to such considerations ( § 194). In the circumstances here, he would reject the arguments made by the solicitor defendants in respect of professional reputation on the basis that they took no positive steps in a timely fashion to protect that reputation in this litigation ( § 197). I agree that the Court can and should have regard to the failure of the solicitor defendants to use the " mechanisms which allow a defendant, who is concerned by the slow pace of litigation, to seek to have the process accelerated " but I see no logical basis for taking that approach to one form of prejudice - damage to professional reputation - but not applying the principle more widely (notably, the observations of Ó Dálaigh CJ in Dowd and of McKechnie J in Comcast were not limited to the issue of professional reputation). Hogan J suggests that a defendant who is not otherwise in default (i.e. a defendant who has not been guilty of "active delay") "cannot be faulted for failing to apply to have the action dismissed" and "such defendants may prefer to take their chances in the hope or even expectation that the action will quietly die" (§191). But if the objective of the jurisdiction is to ensure that proceedings are brought to a conclusion within a reasonable time - as in my view it is - it surely follows that defendants can and should be "faulted" for failing to use the available mechanisms to have the process accelerated, where such failure creates an obvious risk that the proceedings will still have to be heard and determined (because the threshold for dismissal has not been met), but later than would have been the case if the court's intervention had been sought at an earlier stage. As for defendants "taking their chances", it is manifestly not in the interests of justice to incentivise such conduct. As Cross J observed in Calvert v Stollznow, litigation is not a game. Where a defendant makes such a " tactical gamble " (per McKechnie J in Comcast at 37) and where the gamble does not come to pass - because the plaintiff at some point seeks to press on with their claim - it would seem unfair to allow the defendant to rely on the plaintiff's delay in such circumstances (see McKechnie J in Comcast and Cross J in Calvert v Stollznow). But whether fair or not, the upshot of that gamble may well be that the court is faced with adjudicating on a claim that could and should have been determined earlier. Such delay does not simply affect the litigants involved: as my colleagues emphasise, delay in the system may affect other litigants also.
28. In his judgment, Murray J states that "law would be unbalanced if a defendant could game court processes by exercising an unfettered choice as to when it did or did not move to have a case dismissed without any account being taken of its own conduct in that regard" (§50). I agree. Yet that is precisely the unbalanced position that follows from the Court's decision today. Once a period of 2 years elapses without any proceeding, the defendant is entitled (and incentivised) not to take any step in the action and to allow further time to elapse, safe in the knowledge that his or her inaction will not be held against them and knowing that, even if the plaintiff takes steps to progress the litigation, an application for dismissal can nonetheless be made at that stage. Such a model seems to me to be antithetical to the wider interests of justice and the objective of ensuring that proceedings are brought to a conclusion within a reasonable time. Nor, with respect, does it appear to me that the structure put in place by the Rules tells us anything about whether or how courts should have regard to defendant inaction - or, perhaps more correctly, defendant acquiescence - in this context. That is not to suggest that defendants have "mutual obligations to advance the case against them". It is, rather, to seek to incentivise defendants to avail of the mechanisms available to them and to avoid rewarding them when they elect not to do so.
29. In his judgment, the Chief Justice says that plaintiffs and defendants are not to be treated as the same when they are not and that they are not "co-adventurers in litigation with the same interest in bringing it to conclusion" (§14). The clue, he says, is in the name: the defendant's function is to defend a claim that is brought to court (§15). I readily agree that plaintiffs and defendants do not have precisely the same interests. But, as I have already explained, they share a significant interest (and it is also a fundamental interest for the civil justice system) in ensuring that proceedings are brought to a conclusion within a reasonable time. But, in any event, the key question in this context is surely what is in the interests of the administration of justice. That is, after all, the stated rationale for "tightening up" Primor in the manner done today.
30. Incentivising and rewarding defendant acquiescence in plaintiff delay is not in the interests of justice. It contributes to the delayed adjudication of claims that should and could have been heard more quickly, contrary to the intendment of section 11 of the 2024 Act and the requirements of Article 6(1) ECHR. These put positive obligations on courts and justify the courts adopting measures to ensure that proceedings are progressed to a conclusion (on the merits) with all reasonable expedition. I have always had a real difficulty with the suggestion that Article 6(1) ECHR required the adoption of a stricter approach to the dismissal of proceedings or that its requirements might be satisfied by such an approach. Article 6(1) (and section 11) is not concerned with the dismissal of proceedings but with their determination. Equally, I have always found it difficult to reconcile the positive obligations imposed by Article 6(1) with the suggestion that defendants have a right to "let sleeping dogs lie" and cannot reasonably be expected to take even the most basic of steps to protect their interests, steps which also advance the interests sought to be protected by Article 6(1). As Hardiman J emphasised in Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290, Article 6(1) imposes a duty on courts "quite independently of the action or inaction of the parties ... to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time" (294). That is the key feature of the Article 6(1) obligation and with respect I do not consider that my colleagues have given it sufficient consideration in their respective judgments. In light of that obligation (now reflected also in section 11 of the 2024 Act), it is past time to clearly state that it is no longer acceptable for defendants to let sleeping dogs lie and to acquiesce in plaintiff delay.
31. In my view, where a plaintiff fails to prosecute a claim for a prolonged period, such as the period of 2 years referred to in Order 122, Rule 11 (but not necessarily a period of that length), the defendant ought in the first instance raise that default in correspondence. Unless the plaintiff then takes timely steps to progress the claim, the defendant is entitled to bring the matter to the High Court and ordinarily would be expected to do so. Assuming that the Court does not consider it appropriate to make an order for dismissal at that stage (and I adhere to the view that no such order should be made in the absence of material prejudice), it should make such orders as it considers necessary to ensure that the proceedings are progressed and, for that purpose, may effectively assume management of the proceedings. The defendant should ordinarily get the costs of that application. In the event that there is further default on the part of the plaintiff, the court has extensive powers (including the power to make peremptory orders) to address such default, extending of course to the power to dismiss. I remain of the view that recourse to that power should in every case be the option of last resort.
32. If instead the defendant elects not to take any action in the face of the plaintiff's delay, that failure should be a significant factor in any dismissal application subsequently brought by that defendant. The defendant can have no legitimate cause for complaint if the court discounts asserted prejudice which could have been avoided had the defendant moved earlier, as the High Court effectively did in Hogan v Jones. In my view, lapse of time per se should be approached in the same way: the defendant should not be incentivised to sit back in the hope that the clock runs to 4 years or 5 years or whatever the relevant threshold may be for dismissal under the regime announced today.
33. A clear statement by this Court that the days of "letting sleeping dogs lie" have come to an end would, I am convinced, have a transformative effect on litigation practice and make a significant contribution to achieving the objectives in section 11 of the 2024 Act (and Article 6(1) ECHR). I regret that I have not been able to persuade my colleagues of that.
The Power to Dismiss
34. As regards the source of the power to dismiss, and the related issue of whether Order 122, Rule 11 ought to be seen as occupying the field, I agree with the views expressed by the Chief Justice and Hogan J. The power to dismiss proceedings on grounds of delay/want of prosecution is an essential part of the procedural armoury of any court. Such a power is "but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice": Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909, per Lord Diplock at 977D. It is one of the powers that a court must have "in order to maintain its character as a court of justice": Bhamjee v Forsdick (Practice Note) [2003] EWCA 1113, [2004] 1 WLR 88, at 93B. The same point is made by Donnelly in her valuable article "Inherent Jurisdiction and Inherent Powers of Irish Courts" (2009) 2 Judicial Studies Institute Journal 122, where she explains that:
"Inherent powers have arisen to supplement original jurisdictions. Essentially procedural in nature, inherent powers enable courts [to] give full effect to the primary jurisdiction thereby permitting them to fulfil their function as courts of judicature. All courts in the judicial hierarchy - statutory and constitutional - possess inherent powers" (at 146). [9]
35. Donnelly identifies the power to dismiss a claim for want of prosecution or delay as one such "inherent power" (150-151). There are many others, including the general power of courts to manage proceedings, to impose timetables on litigants, to make pre-emptory ("unless") orders and to impose sanctions - including, where appropriate, the sanction of dismissal - in the event of non-compliance: see, for instance, PJ Carroll & Company Limited v Minister for Health and Children (No 2) [2005] 3 IR 457 (the High Court has a general power "to exercise control over its process by regulating its proceedings, by preventing the abuse of process and by compelling the observance of process" at 466); Cork Plastics v Ineos Compound UK Ltd [2008] IEHC 93 (inherent power to direct a modular trial independently of the Rules); Sweeney v VHI [2021] IESC 58, [2022] 2 IR 327 (inherent power to exclude an expert witness on the basis of a conflict of interest). The power to order discovery is also an inherent power which, while regulated to some extent by the Rules, is not derived from them: see Holloway v Belenos Publications Ltd (No 2) [1988] IR 494 and Dome Telecom Ltd v Eircom Ltd [2007] IESC 59, [2008] 2 IR 726.
36. I agree with Donnelly (and with Murray J) that the power to dismiss for want of prosecution/delay is properly characterised as an inherent power and that referring to the inherent jurisdiction in this context is apt to cause confusion and ought therefore to be avoided. The language of inherent jurisdiction should, in my view, be confined to the inherent subject-matter jurisdiction enjoyed by the High Court by reason of the "full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal" vested in that court by Article 34.3.1 of the Constitution and/or the jurisdiction transferred to it by the Courts (Supplemental Provisions) Act 1961. Several categories of the inherent jurisdiction of the High Court in that substantive sense are identified by Donnelly, including its judicial review jurisdiction and its jurisdiction in respect of children and wards of court. In contrast to the inherent jurisdiction, which is limited to the High Court, all courts established by or under the Constitution have the inherent powers necessary to enable them to carry out their functions as such.
37. The inherent jurisdiction of the High Court is, in principle, subject to statutory regulation. Thus, for example, there have been significant statutory interventions in the area of wardship (the Assisted Decision-Making (Capacity) Act 2015 (as amended)) and in relation to children in need of special care (Part IVA of the Child Care Act 1991 (as amended)). More difficult issues arise as to whether, in light of the provisions of Article 34.3.1 of the Constitution, such jurisdiction may be entirely abrogated by statute or transferred to another court to the exclusion of the High Court but no such issue is presented here and so does not require any further consideration. [10]
38. As regards the inherent powers of courts, these too are subject to legislative regulation. Although expressed in terms of courts' inherent jurisdiction, G McG v DW (No 2) (Joinder of Attorney General) [2000] 4 IR 1 and Mavior v Zerko Ltd [2013] IESC 15, [2013] 3 IR 268 are both properly understood as cases concerned with courts' inherent powers - in G McG v DW (No 2) the power of joinder and in Mavior v Zerko Ltd the power to order security for costs. These are powers which "a court [possesses] implicitly whether owing to the very nature of its judicial function or its constitutional role in the administration of justice" (G McG v DW (No 2), per Murray J (as he then was) at 26). Where the legislation occupies the field - where, in Murray J's words, "the jurisdiction of the courts is expressly and completely delineated by statute law" - then, at least as a general rule, that will "exclude the exercise by the courts of some other or more extensive jurisdiction of an implied or inherent nature" (at 27). That was the position in G McG v DW (No 2): section 29 of the Family Law Act 1995 was a complete code as to the joinder of the Attorney General in proceedings under that section and neither the High Court nor this Court on appeal could attribute to itself some inherent jurisdiction going beyond that statutorily conferred.
39. While the issue did not arise in G McG v DW (No 2), it cannot be the case that the Oireachtas has unbounded power to legislate in this area. For instance, it would not seem competent for the Oireachtas to legislate so as to exclude the exercise by courts of powers that are essential to their capacity to administer justice in accordance with the Constitution, such as the power to compel the attendance of persons to give evidence and to administer oaths for that purpose: see this Court's decision in Zalewski v An Adjudication Officer [2021] IESC 24, [2022] 1 IR 421.
40. The issue in Mavior v Zerko Ltd was whether the court had jurisdiction to order security for costs against Mavior, an Irish-registered unlimited company. The High Court (Finlay Geoghegan J) had refused to order security on the basis that the position of Mavior as an unlimited company was indistinguishable from that of a natural plaintiff resident in the State and that it was well-established that the High Court had no jurisdiction - whether under Order 29 RSC or in its inherent jurisdiction - to order security against an Irish resident natural plaintiff on grounds of insolvency/impecuniosity (though a court could order security where such a plaintiff was merely a nominal plaintiff).
41. On appeal to this Court, Clarke J (as he then was) took from G McG v DW (No 2) that it would be to "trespass on the legislative role of the Oireachtas" for the courts to invoke an inherent jurisdiction so as to go beyond a constitutionally permissible delineation specified in a statute: where the limits of a jurisdiction were fixed by statute "it is not for the courts to extend those limits by invoking a vague 'inherent jurisdiction'" (§17). He observed that a relevant jurisdiction might not, however, be the subject of any, or at least any complete, delineation by statute and that, in such cases, "rules of court may seek to regulate the procedural manner in which an inherent court jurisdiction can be pursued" (§18) though he also cautioned that "[t]here are limits ... to the extent to which the rules can properly limit such inherent or statutory jurisdiction" (§21). But there was nothing in Order 29 RSC which, per se, limited the power to order security for costs to plaintiffs resident outside the jurisdiction and therefore the rules "do not purport to create a comprehensive code for the regulation of security for costs" (§18). Any restrictions on the scope of the power to direct security did not really stem from Order 29 but were instead the consequence of authorities interpreting the proper scope of a jurisdiction "which does not really derive from the Rules but rather is one whose exercise is regulated by the Rules" (§19). Those authorities could, in principle, be reinterpreted but anything that went beyond that could reasonably be said to be a legitimate extension of the existing case law that could only be achieved either through a rule change, or depending on how significant the change might be, by statutory amendment (§27). In Clarke J's view, extending the law to permit orders for security for costs to be made against Irish resident unlimited companies would involve such a "radical departure" from the existing framework that it could only be brought about by legislative change (§28).
42. Thus, in Clarke J's view, no issue as to the inherent jurisdiction really arose. If it was proper and appropriate to do so, the court could extend the scope of the Order 29 jurisdiction "by an evolution in its own case law" which would render it unnecessary to invoke any separate inherent jurisdiction. On the other hand, if such an extension was not appropriate, "it would be equally inappropriate to seek to achieve the same end by invoking a separate inherent jurisdiction" (§22). In other words - as I understand the analysis - the restrictions on the scope of the Order 29 jurisdiction ultimately reflected, and were not independent of, the established limits of the courts' underlying power to order security. Therefore, there could be no question of the inherent jurisdiction (or inherent power) being more extensive in scope than Order 29.
43. Order 122, Rule 11 RSC cannot, in my view, be said to be "an express and complete delineation" of the jurisdiction of the courts to dismiss proceedings for want of prosecution/delay or to "create a comprehensive code for the regulation" of such jurisdiction. In the first place, Order 122, Rule 11 does not appear to apply to some forms of action in the High Court, such as claims made by way of summary summons: Kerry County Council v Gun Browne [1946] Ir Jur Rep 1. Secondly, and fundamentally, the Rule is wholly silent as to how the power is to be exercised (save to the extent that it indicates that it is bounded by what may appear to be "just"). To that it may be said - and this is in substance what my colleague Murray J says - that, even so, the Rule expressly and completely delineates the circumstances in which proceedings may be dismissed to the extent that it excludes the making of any such order unless "there has been no proceeding for two years from the last proceeding had". To that extent, it may be said to create a "comprehensive code". That argument has force but, ultimately, I am not persuaded by it. Firstly, the language of the Rule is permissive rather than exclusive. Secondly, the fact that the Rule is structured by reference to "proceedings" both generates uncertainty (what is a "proceeding"?) and creates the potential for the Rule to be "triggered" even though the litigation is active (because the activity is not such as to constitute a "proceeding") and, more significantly, gives rise to a risk that even though a claimant is guilty of significant delay in progressing their claim, the Rule is not triggered because no continuous period of two years has elapsed without a "proceeding" or because a "proceeding" has had the effect of "resetting the clock" after a long period of inaction (which was the position in Collins v Bus Átha Cliath).
44. I accept that the rule-making power of the Rules Committee extends to the making of rules regulating the inherent power of courts to dismiss proceedings for want of prosecution/delay. Indeed, as already noted, I strongly agree with the view of Hogan J that the Rules require to be reformed and strengthened in this area (Judgment of Hogan J, §5, §155, §209). But, as Clarke J made clear in Mavior, there are limits to the extent to which rules can properly limit such an inherent power (and, a fortiori, the extent to which such rules can exclude the inherent power entirely). I agree with the Chief Justice that there is no direct read across from G McG v DW (No 2) and that any suggestion that the Rules have, in any given area, occupied the field to the exclusion of the courts' inherent power should be approached with caution (§13). True it is that rules are "law" but the rule making power enjoyed by the Rules Committee is bounded, firstly, by Article 15.2 of the Constitution and, secondly, by the terms of section 36 of the Courts of Justice Act 1924 (as amended) which permits rules to be made relating to "pleading, practice and procedure generally", as to which see this Court's decisions in MO'S v Residential Institutions Redress Board [2018] IESC 61, [2019] 1 ILRM 149 and DPP v McGrath [2021] IESC 66, [2021] 3 IR 785. In her judgment in MO'S (with which MacMenamin and O' Malley JJ agreed), Finlay Geoghegan J expressed the view that "a rule may not modify, in the sense of excluding or limiting in some significant way, a power which exists at common law or a power which forms part of the inherent jurisdiction of the courts in the administration of justice" (§86). I agree. [11] If Order 122, Rule 11 were to be read as replacing the inherent power of the High Court to dismiss a claim on grounds of delay/want of prosecution, thus altogether excluding the Court's power to dismiss unless there is a continuous 2-year period without a "proceeding", its vires might come into question. However, for the reasons set out above, and the further reasons set out by Hogan J in his judgment (and the additional reasons set out in the Northern Irish decisions to which he refers), that does not appear to me to be the position here. In my view, Order 122, Rule 11 does not have the effect of excluding the courts' power to dismiss proceedings in circumstances other than those set out in Rule 11, even if, in practice, such circumstances are likely to be rare.
45. I would add that, in my view, the fact that the court may have an inherent power to dismiss an action in the circumstances identified in the O' Domhnaill v Merrick line of authority (which is not directly at issue here) does not imply that that is the extent of the court's inherent power in this context. I agree with the Chief Justice that the Primor jurisdiction, the O' Domhnaill v Merrick jurisdiction and the jurisdiction to dismiss proceedings for abuse of process (a jurisdiction which extends to the dismissal of so-called "warehoused" claims: Grovit v Doctor [1997] 2 All ER 417, 424) exist on a continuum rather than constituting completely separate and free-standing powers (§13).
Disposition of the Appeal
46. It remains to consider how the appeal should be resolved. For that purpose, I gratefully adopt the detailed statement of facts set out by Hogan J in his judgment.
47. The overwhelming factual feature presented here is that on 5 September 2013 Mr Buttle obtained an order effectively staying the judgment previously obtained by Filbeck against him in the Creditor Action (in the sum of €1,056,936). That order was sought, and made, on the basis that Mr Kirwan would then prosecute the Combined Action (which related back to events in 2005/2006). As a matter of law, he was under a special obligation to prosecute that action without delay, given the order obtained by him on 5 December 2013, in the same way as if he had obtained an interlocutory injunction on that date. I agree with what Murray J says in that regard (at §62). Such a duty also arose given that, on any view, the Combined Action had had a very "late start" (assuming that it was brought within the limitation period at all). In such circumstances, the authorities have consistently made it clear that a plaintiff must proceed with particular diligence. Mr Kirwan failed to proceed with any diligence at all. As Murray J observes, Mr Kirwan obtained a "significant collateral benefit" by obtaining the order of 5 December 2013 and then effectively sitting on it. That might, in itself, be considered a sufficient basis for dismissing the proceedings, at least as regards the Filbeck defendants. Obtaining a litigious advantage through the issuing of proceedings that are not then prosecuted is a form of "warehousing" amounting to an abuse of process which may justify the dismissal of proceedings without any need to establish prejudice: see, for example, Grovit v Doctor. But the application was not made on that basis and, in those circumstances, it would not be right to uphold the order on that basis. But I agree with Murray J that the collateral benefit obtained by Mr Kirwan is a highly significant factor in the balance of justice.
48. In their judgments, my colleagues have considered, and rejected, the excuses offered by Mr Kirwan for his delay and I have nothing to add to their analyses.
49. As regards prejudice, it appears to me that the defendants have been significantly prejudiced by Mr Kirwan's delay. The case against the solicitor turned significantly on oral evidence and particularly on the evidence of Ms Connors and, in my view, the Court of Appeal (per Power J) was entitled on the material before it to conclude that her capacity (and the capacity of the other witnesses) to recollect detail as to the events in issue "must be regarded as considerably impaired". Given the centrality of Ms Connors to the case against the solicitors (and given the interconnected nature of the case made against all the defendants) and, having regard to the further points made by Murray J in his judgment (at §47), that finding was sufficient in itself to satisfy the third leg of the Primor test.
50. That conclusion follows from the application of existing rules. Primor, and the jurisprudence from England and Wales on which it was based, expressly recognises that prejudice may involve something more than fair trial prejudice. The obtaining of a litigation advantage is clearly a relevant factor and one to which significant weight must be given. But, that apart, it appears to me that the defendants have been materially prejudiced by the unexplained delay on the part of the plaintiff.
51. Did the defendants disentitle themselves to orders of dismissal by their failure to take steps earlier to bring Mr Kirwan's default to the attention of the High Court? Certainly, it seems surprising that they did not. The defendants could have brought the matter back to Kearns P at any stage. But I do not consider that it would be appropriate to deny relief on that basis. To do so would be to apply a very different rule to the conduct of the defendants to that applied to date in the Primor jurisprudence. While, for the reasons set out above, I consider that rule to be mistaken, and have urged its reform, even if such a change had the support of a majority of the Court (which it does not) it would not appear appropriate to apply it with retrospective effect.
52. I would therefore, in agreement with all other members of the Court, dismiss the appeal and affirm the orders made by the Court of Appeal.
[1] The 2003 Act does not, of course, give direct effect to the ECHR and courts are not "organs of the State" for the purposes of section 3 of that Act. However, the rules relating to the dismissal of proceedings on grounds of delay, whether grounded in the inherent power of the court or deriving from Order 122, Rule 11, clearly come within the scope of the interpretative obligation in section 2 of the Act.
[2] I agree with Hogan J that reform of the Rules has the potential to make a significant contribution in this area, subject to the necessary resources being made available for their effective implementation. There are already many areas of litigation in the High Court which are subject to case management, such as commercial litigation admitted to the Commercial List (Order 63A), competition proceedings (Order 63B), certain Chancery and non-jury actions (Order 63C) and proceedings in the Planning and Environment list (Practice Direction HC 126). This kind of case management is resource intensive but there is much that the Rules can provide for, short of expanding the scope of such case management, that would assist. More detailed and prescriptive time-limits for taking the procedural steps necessary to bring an action to the point of readiness could be set down and the Rules could more clearly prescribe the consequences of non-compliance with such time-limits. More significantly perhaps, the Rules could usefully include a provision equivalent to the (EW) Civil Procedure Rules (CPR) Part 1, Rule 1.1 (the "overriding objective"). Rule changes aside, relatively simple measures such as holding regular positive call-overs of cases that have not been set down for trial would contribute significantly to progressing cases and weeding out those that are not being prosecuted.
[3] Actions in contract and claims in tort (other than actions seeking damages in respect of personal injuries) are subject to a 6-year limitation period: section 11 of the Statute of Limitations 1957. In its 2011 Report on Limitation of Actions (LRC 104 - 2011), the Law Reform Commission recommended that a "basic limitation period" of 2 years should apply to such actions, to run from the claimant's date of knowledge (and subject to a 15 year "long-stop", which could be extended or disapplied by a court in exceptional circumstances). Such a reform would accommodate claimants whose claims may currently become statute-barred before they ever become aware that they have a claim, a scenario that raises significant constitutional issues that this Court's decision in Tuohy v Courtney [1994] 3 IR 1 cannot be regarded as having finally resolved: see the observations of McKechnie J in Brandley v Deane [2017] IESC 83, [2018] 2 IR 741 and of O' Donnell J (as he then was) in Cantrell v Allied Irish Banks plc [2020] IESC 71, [2021] PNLR 9 and, more recently, this Court's decision in Smith v Cunningham [2023] IESC 13, [2023] 1 ILRM 407. At the same time, as regards actions where no difficulty with the date of knowledge arose (the majority of contract and tort actions) the effective limitation period would be much shorter and actions would therefore have to be commenced much more proximately to the events giving rise to them and pre-commencement "delay" would be significantly reduced.
[4] See also the subsequent decision of the House of Lords (which post-dates Primor) in Grovit v Doctor [1997] 2 All ER 417.
[5] The Master of the Rolls was the other member of the Court of Appeal in Allen. However, his approach - which can fairly be said to have been "more unbending" than the approach adopted by his colleagues - did not command majority support and it is the judgments of Diplock and Salmon LJJ that have been cited and applied subsequently.
[6] Notably, the reports of Dowd and O' Reilly v CIE appear to suggest that, in each case, the defendant had brought an application to dismiss for want of prosecution pursuant to the then equivalent of what is now Order 122, Rule 11 RSC.
[7] In his judgment, Murray J suggests that Collins is best viewed as one of the early decisions in which courts failed to distinguish clearly between the jurisdiction to dismiss for want of prosecution and the power to dismiss for non-culpable delay envisaged in O' Domhnaill v Merrick (§37). I respectfully disagree. In Collins the High Court had made an order dismissing the action pursuant to Order 122, Rule 11. It had no jurisdiction to do so because proceedings had been taken in the two years prior to the application. But, in this Court's view, that affected only the form of the order as opposed to the substance of the High Court decision. There was a "similar but distinct" jurisdiction to "dismiss for reasons of delay - delay which was both inordinate and inexcusable and prejudicial to the Defendants" (per Murphy J, at 6). That language (which is repeated at the end of the judgment) plainly refers to the Primor jurisdiction, a point reinforced by the reference in the judgment to Primor itself and to NIHE v Wimpey [1989] NI 395, a case in which the Northern Ireland High Court held that it had an inherent power to dismiss for want of prosecution even where no power to dismiss arose under the Rules. There is no equivalent to the O' Domhnaill v Merrick jurisdiction in Northern Ireland (or in England & Wales). So Collins has a two-fold significance. It is, firstly, authority for the continued availability of an inherent power to dismiss notwithstanding the provisions of Order 122, Rule 11 and, secondly, it indicates that, differences in the jurisdictional threshold aside, the inherent power and the power under the Rules fall to be exercised on a similar basis i.e. prejudice is an essential ingredient of both.
[8] I accept of course that, as Murray J observes in his judgment, there are many significant differences between civil procedure in this jurisdiction and in England and Wales but, in my view, none of those differences bear on the issue of whether defendant inaction is a relevant factor in exercising the jurisdiction to dismiss proceedings on grounds of delay/want of prosecution.
[9] Donnelly goes on to discuss two theories of the juridical basis for courts' inherent powers, one being that such powers are part of the "common law of courts", the other being that they are the consequence of separation of powers doctrine. It is not evident to me that these constitute distinct alternative juridical bases. There certainly sems to be a significant overlap between them. In any event, the issue does not require further discussion here.
[10] It is noteworthy in this context that section 4(5) of the Assisted Decision-Making (Capacity) Act 2015 (inserted by the Assisted Decision-Making (Capacity) (Amendment) Act 2022) expressly provides that nothing in that Act "shall affect the inherent jurisdiction of the High Court to make orders for the care, treatment or detention of persons who lack capacity". While there is no equivalent provision in Part IVA of the Child Care Act 1991, in practice it appears that Part IVA has not been understood to have supplanted the inherent jurisdiction previously exercised by the High Court in respect of children in need of special care.
[11] MO' S was, as Murray J observes at §33 of his judgment, concerned with an aspect of the High Court's inherent jurisdiction stricto sensu (judicial review) but in my view the same principles apply to the regulation of inherent powers.