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URL: http://www.bailii.org/ie/cases/IESC/2025/2025IESC21HoganJ.html

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AN CHÚIRT UACHTARACH

 

THE SUPREME COURT

 

O'Donnell C.J.

Dunne J.

Charleton J.

O'Malley J.

Hogan J.

Murray J.

Collins J.

 

S:AP:IE:2023:000001

 

[2025] IESC 21

 

 

BETWEEN

 

 

BRENDAN KIRWAN

 

      

PLAINTIFF

 

 

- 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

 

 

 

JUDGMENT of Mr. Justice Gerard Hogan delivered the 30th day of May 2025

Part I - Introduction

 

Introduction

1.      Order 122, r.11 of the Rules of the Superior Courts 1986 gives the High Court a jurisdiction to dismiss an action for want of prosecution where there has been no "proceeding" for more than two years. The rule has existed more or less in this form since the immediate post-Famine period (see General Order 178 which was introduced pursuant to s. 233 of the Common Law Procedure (Ireland) Act 1853). It was subsequently carried over by a series of rules of court: see Ord. 64, r. 11 of the Rules of the Superior Courts (Ireland) Act 1891, Ord. 64, r. 15 the Rules of the Supreme Court (Ireland) 1905 and Ord. 108, r. 11 of the Rules of the Superior Courts 1962. Yet this provision has not always received the attention which it deserves. Perhaps one consequence of this judgment will be that the central importance of this rule in the context of what constitutes inordinate delay for the purposes of the application of the principles in Primor Plc v. Stokes Kennedy Crowley [1996] 2 IR 459 will be re-established.

2.      It is now over twenty years since the decision of this Court in December 2004 in Gilroy v. Flynn [2004] IESC 98, [2005] 1 ILRM 290. In that case, Hardiman J. drew attention to a series of developments which had taken place in the eight-year interval since the earlier decision of this Court in Primor regarding the jurisdiction to strike out by reason of undue delay. These developments of which Hardiman J. spoke included the amendments to Ord. 27 dealing with the default of pleading and an increased judicial awareness of "unfairness and the increased possibility of injustice which attach to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued": [2005] 1 ILRM 290 at 293-294. Hardiman J. also pointed to the potential impact of the European Convention of Human Rights Act 2003 and the duty of the courts to ensure that "quite independently of the parties to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time."

3.      He then memorably observed that ([2005] 1 ILRM 290 at 294)

 "...comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end. Cases such as [Primor] will fall to be interpreted and applied in light of the countervailing considerations also mentioned above and others and may not prove as easy an escape from the consequences of dilatoriness as the dilatory may hope."

4.      These words have served as a leitmotif for reform and for changing judicial attitudes to the issue of delay in civil proceedings. There is no question but that our legal system had previously been far too accommodating so far as delay in the prosecution of litigation had been concerned. Even comparatively recent decisions of the European Court of Human Rights such as Keaney v. Ireland [2020] ECHR 118 show that delays in the legal system remain.  Such delays do not reflect well on either the fairness or the efficiency of the legal system.

5.      The present case highlights the need for reform of the Rules of the Superior Courts and, independently of this, of the need for the courts to be more prescriptive in terms of setting timetables and deadlines for litigants. There is in fact a good deal which the courts can already do of their own volition. On an application for directions, they can, for example, fix timetables for pleadings. They can, if asked to make orders of the kind sought and obtained by the plaintiff here (and in respect of similar orders such as interlocutory injunctions), attach express conditions to the order so as to ensure that the proceedings are prosecuted expeditiously after the order is made and to guard against a situation where, having obtained interlocutory relief, the plaintiff is happy to allow proceedings to go into a form of cryonic suspension.  Courts could also be encouraged to make more use of "unless orders" and the like.

6.      The specific issue in this appeal is whether the Primor principles should be revised, as this Court has not had yet had a full opportunity to give them due consideration since the enactment of the 33rd Amendment of the Constitution Act 2013 and the establishment of the Court of Appeal in October 2014.  After an initial hearing in April 2024, the Court decided to re-open the argument so that the matter could be re-argued before an extended composition of the Court sitting with seven judges in view of the importance of the issue. The Court also decided to ask the Attorney General to intervene in the appeal.

7.      The Primor principles have in turn generated a considerable degree of case-law, not all of it easily reconcilable. In that respect one need only compare two separate decisions of the Court of Appeal dealing with delayed historic sexual abuse allegations each delivered within weeks of each other: Cassidy v. The Provincialate [2015] IECA 74 and McLoughlin v. Garvey [2015] IECA 80.

8.      This plethora of case-law also raises the wider question of whence the jurisdiction to strike out proceedings on the grounds of undue delay arises. Does it arise solely from the inherent jurisdiction of the court? To what extent are the provisions of Ord. 122, r. 11 relevant? And more fundamentally the question must be asked what the purpose of the strike-out jurisdiction actually is? Is it principally to ensure a fair trial to so that justice is not "put to the hazard" by reason of lapses of time which make it impossible for a court to be sure that justice can fairly be done as between the parties: see O'Reilly v. Coras Iompair Éireann [1973] IR 278 at 287 per Henchy J.? And even where a fair trial is possible, does a court nonetheless retain a wider jurisdiction to strike out where the processes of the court have been abused by reason of gross delay? To what extent is a defendant's inactivity relevant in assessing whether to strike out for undue delay?

9.      It is impossible to avoid the conclusion that the experience of the last 30 years has shown that the Primor principles have not worked in the manner in which this Court probably intended that they would. Specifically, the application of the principles has proved problematic, with vast amounts of judicial time consumed in adjudicating on these applications. The problem, of course, is that the tests formulated in Primor have lent themselves to subjective and inconsistent application.

10.   For reasons I will presently explain I consider that the time has come for an adjustment of the Primor test(s), taking into account the provisions of Ord. 122, r.11.  I should say in this context that I agree with the judgment which the Chief Justice has just delivered, and I also agree generally with the judgments which Murray and Collins JJ are about to deliver save for Murray J.'s treatment of the source of the strike-out jurisdiction  and the treatment by Collins J. of the obligation which he would see is also imposed equally upon defendants. It follows, therefore, that the judgment of O'Donnell C.J. and this judgment represent the judgments of the majority of the Court. As will be seen, there is, in any event, a high degree of consensus among the four judgments and all members of the Court are agreed that the appeal should be dismissed.

11.  Before considering any of these questions, it is necessary first to set out the Primor test and the text of Ord. 122, r. 11 itself before then setting out the essential facts of this complex case.

Part II - The Primor test and the text of Ord. 122, r. 11

12.  In Primor this Court set forth the following principles of law relevant to an application to dismiss an action for want of prosecution:

                    i.          that the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice so required;

                 ii.          that the party who sought the dismissal on the ground of delay in the prosecution of the action must establish that the delay had been inordinate and inexcusable;

               iii.          that even where the delay had been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice was in favour of or against the case proceeding;

                iv.          that when considering this obligation, the court was entitled to take into consideration and have regard to —

a)        The implied constitutional principles of basic fairness of procedures;

b)        Whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action;

c)        Any delay on the part of the defendant - because litigation is a two-party operation, the conduct of both parties should be examined;

d)        Whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay;

e)        The fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case;

f)         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 to have caused serious prejudice to the defendant; and

g)        The fact that the prejudice to the defendant referred to in (f) may arise in many ways and may be other than that merely caused by the delay, including, damage to a defendant's reputation and business.

13.  Ord. 122, r. 11 provides as follows:

"In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed.  In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just.  A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule."

The wording of Ord. 122, r. 11

14.  While I propose to examine the details of the Primor jurisprudence at a later stage, it may be convenient to say something further at this point regarding Ord. 122, r. 11 itself.

15.  The wording of Ord. 122, r. 11 is admittedly not without difficulties. Although past decisions of this Court have served to clarify its ambit and effect, uncertainties still remain. In McMullen v. Farrell (No.2) [2004] IESC 6, [2004] 2 IR 328 at 322, Keane C.J. held that a defendant who wishes to have proceedings dismissed for want of prosecution under Ord. 122, r. 11 is not required to serve a notice of intention to proceed in advance of any Ord. 122, r. 11 application because he or she "is not a party 'who desires to proceed' within the meaning of the first sentence: on that contrary, he is seeking the dismissal of the proceedings." Neither a notice of change of solicitor or a notice of intention to proceed constitute a "proceeding" within the meaning of this provision: see Anglo-Irish Beef Processors Ltd. v. Montgomery [2002] 3 IR 510 at 517, per Fennelly J. As Gibson J. said in Allen v. Redland Tile Co. (NI) Ltd. [1973] NI 75 at 79 in the context of a similarly worded Northern Irish rule:

 "To hold otherwise would be to stultify the operation of the rule in cases where a defendant's solicitor had died or been discharged, because the new solicitor could not take out the notice of motion to dismiss the action without first being placed on the record and if the notice of change of solicitor were to constitute a  proceeding it would follow that the very machinery for putting him in a position to make the application would debar the remedy."

16.   It is nevertheless not entirely clear what constitutes a "proceeding" for this purpose.  In Allen, Gibson J. described it (at 78) as "something in the nature of a formal step being either an application to court or at least a step taken by a litigant in the prosecution of an action, being a step which is required by the rules." He added helpfully that the proviso to the rule that "if no order has been made on a notice of summons it shall be deemed not to be a proceeding demonstrates that what might otherwise be a proceeding is not to be so regarded if it does not advance the action."

17.  Yet there is also English authority to the effect that filing affidavits in answer to a motion is not a step in the proceedings: see Zallinoff v. Hammond [1898] 2 Ch 92. The English courts have also held that a notice requiring delivery of a statement of claim following the entry of an appearance is not a step in the proceedings: see Ives and Barker v. Williams [1894] 2 Ch 478. Independently of authority one might suggest that at least the filing of affidavits is a step in the proceedings because this step presumably seeks to advance the action. The same might be said of a notice requiring the delivery of a statement of claim. These are nevertheless matters which perhaps might usefully be clarified by amendments to the Rules of the Superior Courts.

18.  The provisions of the rule may possibly serve as a disincentive to defendants who might otherwise wish to apply to the High Court to serve a notice for trial pursuant to the provisions of Ord. 36, r. 12 where the plaintiff has failed to do so since such is deemed by the express wording of Ord. 122, r. 11 to be a "proceeding" for this purpose. This might have the effect of penalising defendants who sought to have the case advanced by precluding them subsequently from applying for a dismissal for want of prosecution on the ground that there had in fact been a "proceeding" within the previous two years.

19.  Over and above these interpretative difficulties, one must bear in mind that Ord. 122, r. 11 is simply a procedural provision which enables a defendant to apply to have the action dismissed for want of prosecution. The rule gives no further guidance to the court as to what should happen in such circumstances. It is nonetheless is of value in that it provides an objective yardstick in the form of a positive legal rule as to what constitutes inordinate delay.

20.   This is a further issue to which I will presently return.

Part III - The background facts

21.  It is next necessary to set the background facts to this appeal. The appeal itself has its origins in events which took place in 2005 and 2006. In summary they are as follows.

22.  The plaintiff, Mr. Kirwan, was the owner of a property in Wexford town and he wished to have it developed. He thus engaged in negotiations with Mr. Buttle (the third defendant). Mr. Buttle had rejected an initial proposal of Mr. Kirwan which had proposed that Mr. Buttle would pay Mr. Kirwan €4m. for this property, comprising of a €1m. cash payment, with Mr. Kirwan retaining property at the value of €3m. in the development once constructed. An agreement was, however, allegedly reached on 5th July 2006 as a result of which it is claimed Mr. Kirwan and Mr. Buttle entered into two agreements for the sale of the property. There was also an alleged deed of release dated 23rd June 2006 and stamped received by M.J. O'Connors Solicitors on 27th June 2006.

23.  Under the first agreement, Mr. Buttle is said to have contracted to purchase land from Mr. Kirwan subject to Mr. Buttle, as purchaser, securing planning permission for the development of the land in question. Under the second agreement, it is said that the parties had entered into a loan agreement whereby Mr. Buttle advanced a loan of €1m. to Mr. Kirwan which was to be repaid either when this (alleged) contract was terminated or when planning permission was secured. As security for the loan, a mortgage deed was allegedly executed on 5th July 2006, giving Mr. Buttle security over certain lands belonging to Mr. Kirwan. Notably, however, this transaction did not proceed given the 2008 recession which caused a major downturn in the property market. The debt that was due by Mr. Kirwan to Mr. Buttle on foot of the loan was later assigned by him to a company called Filbeck Limited ("Filbeck"), of which Mr. Buttle was and is a director.

24.  It is important to note that Mr. Kirwan disputes that this transaction ever took place, stating that he was out of the country from 22nd June 2006 to 14th July 2006. He thus contends that any documentation from these dates is the result of forgery. He seeks to substantiate this claim by arguing that the firm of solicitors that represented him in this transaction also represented Mr. Buttle, thereby creating a conflict of interest. He claims moreover that he was represented by a staff member, Ms. Connors, of M.J. O'Connor Solicitors who herself was not a qualified solicitor. (Ms. Connors and the firm of M.J. O'Connor are respectively the first and second defendants).

25.  These events have given rise to three separate items of litigation, the details and chronology pertaining to which I will now seek to summarise.

The 2011 'Creditor' Action: Filbeck Limited v. Brendan Kirwan 2011, No. 4998 S

26.  On 20th November 2011, Mr. Buttle's legal advisers wrote to Mr. Kirwan's solicitors to inform him that Mr. Buttle intended to assign all his rights under the agreement to Filbeck. On 20th December 2011, Filbeck commenced proceedings against Mr. Kirwan by way of summary summons in which the company sought to recover what it claimed to be an outstanding sum of €980,000, plus interest. On 15th November 2012, Filbeck secured judgment against Mr. Kirwan in the amount of €1,056,936. On 4th December 2012, Mr. Kirwan issued a motion seeking to have that judgment set aside. In response, Mr. Buttle filed an affidavit on behalf of Filbeck. This set aside motion was due to be heard by the High Court on 5th December 2013.

The 2012 'Buttle' Action: Brendan Kirwan v. Eamonn Buttle 2012, No. 2995 S

27.  On 8th August 2012, Mr. Kirwan instituted proceedings by way of summary summons against Mr. Buttle. He sought an order granting him €3m. which he claimed was the amount owed to him based on the "contract" dated 9th May 2006. Mr. Kirwan also sought an order granting him €20,000, claiming that this sum was owed to him on foot of a loan. On 25th February 2013, Mr. Buttle sought an order to dismiss or stay these proceedings on the basis that they disclosed no reasonable cause of action. In the alternative, he applied to have the proceedings struck out on the grounds that they were frivolous and vexatious and/or bound to fail. This application was also due to be heard by the High Court on 5th December 2013.

28.  On that date, Kearns P. adjourned both this application and the set aside motion in order - we have been informed - to allow Mr. Kirwan to prosecute additional proceedings, known as the 'Combined' Action. The actual order of the High Court made on that date is admittedly somewhat more laconic as it simply records that "these proceedings be listed for hearing with proceedings bearing record number 2013 5514P between Brendan Kirwan Plaintiff and Marguerite Connors & Co. Defendants." An identical order was also made on the same day by Kearns P. linking the Filbeck creditor action with the main 2013 5514 P proceedings. These orders are nonetheless consistent with an understanding that these various proceedings were being adjourned in order to allow Mr. Kirwan to press ahead with his various contentions and claims and that all three sets of proceedings were due to be listed together at some future stage.

The 2013 'Combined' Action: Brendan Kirwan v. Marguerite Connors & Others, 2013 No.  5514P

29.  This set of proceedings had been commenced on 30th May 2013 by way of plenary summons.  They bear the record number 2013 5514P. Included in those proceedings was Mr. Kirwan's objection to the judgment entered against him in the 2011 Creditor Action and his claim against Mr. Buttle in the 2012 action. They also include several claims against the solicitors who were involved in the failed property transaction.  Defences were filed by the solicitor defendants in November 2013 and by what I shall term the Buttle/Filbeck defendants on 6th December 2013.

30.  The plaintiff maintains that he served a notice for particulars on the two sets of defendants on 10th January 2014. It is only fair to note that the solicitor defendants maintain that they were not served at that time and there is in fact no evidence that they were so served other than the plaintiff's own assertion to this effect. It is, however, agreed that they were in fact served with these requests for particulars as of November 2018.  Neither set of particulars were ever replied to by the defendants.

31.   It is striking that no further actions regarding either the 2011 or the 2012 proceedings were taken until 2018. On 1st May 2018 the solicitors for Mr. Buttle and Filbeck served a notice of intention to proceed on the plaintiff.

Steps taken in 2018-2019

32.  On 17th August 2018, the Buttle defendants brought a motion seeking to have the 2013 proceedings dismissed for want of prosecution.  This motion invoked the provisions of Ord. 122, r. 11 and/or the inherent jurisdiction of the Court. Mr. Buttle also sought to re-enter his adjourned motion whereby he had sought to have Mr. Kirwan's claim against him struck out for being frivolous and vexatious.

33.  On 13th November 2018, Mr. Kirwan issued two motions regarding the 2012 action seeking various orders. These orders included an order to strike out Mr. Buttle's defence for what was described as "want/lack of fact and truth" and an order to strike out Mr. Buttle's re-entered motion that was brought on the basis of the action being frivolous and vexatious. Mr. Kirwan also brought a motion relating to the 2013 proceedings, seeking an order striking out the Buttle defendants' defence for "want/lack of fact and truth" and "want/lack of procedure".

34.  On 15th November 2018, the solicitor defendants issued a motion in which they also sought to have the 2013 proceedings dismissed for want of prosecution. They further sought an order to strike out the 2013 case or, in the alternative, the case against them on the grounds that it was bound to fail.

35.  On 5th April 2019, Mr. Kirwan issued a notice of motion seeking an order directing that his son, Barry Kirwan, be entered as his next friend regarding the 2013 proceedings.

The High Court Proceedings

36.  The defendants' applications to strike out the 2013 proceedings for want of prosecution were heard by the High Court from 15th to 17th May 2019. In that application Meenan J. considered the following:

                             i.     Whether the delay in issuing the 2013 proceedings was inordinate;

                           ii.     Whether, in light of the two excuses put forward by Mr. Kirwan, such delay was in fact excusable;

                         iii.     What the balance of justice required;

                         iv.     Whether there was any culpable delay on part of the defendants; and

                           v.     The personal and social background of the person bringing the proceedings.

37.  With regard to the delay, Mr. Kirwan submitted that he had served a notice for particulars on the Buttle defendants on 10th January 2014 and that they failed to respond to this notice. Mr. Kirwan also submitted that he was awaiting receipt of the file from a former solicitor who had been instructed by him at an earlier stage in the proceedings. Meenan J. held that these were not valid excuses; he noted that the deponent on behalf of the solicitor defendants stated that there was no record to confirm receipt of the notice for particulars. In addition, even if there had been any default of pleadings on the part of the defendants, Mr. Kirwan had not followed up on this supposed default during the subsequent five and a half years. Meenan J. also found that the original of the solicitors' file had been returned to Mr. Kirwan in April 2017. A copy of the file had, however, already been sent to his then nominated solicitor in 2010. Meenan J. thus held that these reasons for delay were invalid and found that Mr. Kirwan had been guilty of both inordinate and inexcusable delay in prosecuting the 2013 proceedings.

38.  Meenan J. proceeded to consider the substance of the allegations of professional negligence and fraud that had been made against the solicitor defendants. In considering Ms. Connor's retirement in 2008, her ill health, and the general diminution in a person's ability to recall events over time, he was satisfied that the solicitor defendants had suffered prejudice and that this produced a significant risk of an unfair trial. He also held that the Buttle defendants suffered prejudice as Filbeck was unable to execute the judgment it obtained against Mr. Kirwan. Further, they were entitled to an expeditious determination of the allegations made against them. Meenan J. was also satisfied that the defendants had not been guilty of any culpable delay. He accordingly granted the defendants' applications to dismiss the proceedings for want of prosecution.

39.  Noting that the dismissal of the 2013 proceedings held consequences for both the 2011 creditor action and the 2012 Buttle action, Meenan J. indicated that he would hear the parties in respect of such orders on 23rd October 2019. However, other events unfolded before that hearing took place.

Events preceding the 23 October 2019 hearing

40.   On 18th September 2019, Mr. Kirwan issued a motion pursuant to Ord. 28, r. 11 RSC, seeking to correct certain errors in the High Court judgment. The alleged errors were:

                               i.             The trial judge had mischaracterised Ms. Connors as a solicitor rather than a legal executive and had failed to acknowledge that any legal work prepared by her could not be "recognised or condoned and or relied upon" by the Court;

                             ii.            The trial judge's statement that the proceedings were not issued until seven years after the subject matter of the proceedings occurred, did not take into account the fact that, until September 2010, Mr. Kirwan had himself been the subject of a legal action instituted by MJ O'Connor Solicitors;

                           iii.             The trial judge's finding that "the plaintiff took no step to further prosecute these proceedings since December 2013 some six years ago' did not reflect that, in this period, there were three 'separate notices for particulars outstanding";

                           iv.             The trial judge had depicted in a 'misleading and false' manner, that the outstanding file (the one at issue in the second 'excuse' offered for the delay) had been given to him, in full, in 2010;

                              v.            The trial judge had described Mr. Kirwan approaching Mr. Buttle about a deal when, in fact, it was Mr. Buttle who had instigated the scheme; and

                           vi.             The trial judge had erred in stating that Mr. Kirwan had signed documents in July 2006, when this would have been impossible for him to do given that he was on holiday in France at the time.

41.  On 9th October 2019, Meenan J. adjourned Mr. Kirwan's application under the 'slip rule' for a period of two weeks to afford the defendants an opportunity to reply. The Buttle defendants indicated that they wished to bring their own application to 'renew' the judgment secured by Filbeck in the 2011 creditor action and have that secured upon Mr. Kirwan the following week.

The 23rd October 2019 Hearing

42.  The following orders were made by Meenan J. on this date:

                        i.          An order dismissing the 2013 combined action pursuant to Ord. 122, r. 11 RSC, and awarding the defendants the costs of the application to dismiss and the costs in defending the 2013 proceedings;

                      ii.          An order that Mr. Buttle be at liberty to re-enter the motion to strike out the 2012 action as being frivolous and vexatious and an order granting the relief sought on foot of that motion with costs in favour of the defendant;

                    iii.          An order granting Filbeck leave to execute the judgment it had obtained in the 2011 creditor action in the sum of €1,056,936.00 against Mr. Kirwan plus interest in the sum of €79,936.00; and

                    iv.          An order re-entering and refusing Mr. Kirwan's motion to set aside the judgment obtained by Filbeck in the 2011 creditor action with costs of the proceedings in favour of Filbeck.

The Defendants' 'Slip Rule' Application

43.  On 17th December 2019, both sets of defendants sought various corrections to the 23rd October 2019 orders pursuant to the provisions of the 'slip' rule. They submitted the following:

                        i.          First, counsel for the Buttle defendants indicated that the motion brought on behalf of the solicitor defendants to dismiss the 2013 proceedings was not mentioned in the order. Moreover, whereas the order recorded that the Court had acceded to the application of the Buttle defendants to dismiss the 2013 proceedings, it had not mentioned that the case against the solicitor defendants had also been dismissed;

                           ii.     Second, the counsel for the solicitor defendants noted that the order failed to stipulate that Mr. Kirwan was to pay the costs of all of the Buttle defendants and the solicitor defendants;

                         iii.     Third, counsel for the solicitor defendants indicated that whereas it was recorded that the order to dismiss was made pursuant to Ord. 122, r. 11 RSC, it should, in fact, have stated that it was made pursuant to the inherent jurisdiction of the Court. On this point, counsel referred to para. 16 of the High Court judgment which had considered the 'jurisdiction to dismiss...for want of prosecution' and in which the trial judge had stated that he would rely on the authority of Primor. The principles cited therein, it was submitted, related to the inherent jurisdiction of the Court to dismiss proceedings for inordinate and inexcusable delay, as distinct from Ord. 122 RSC; and

                         iv.     Fourth, counsel for the solicitor defendants contended that amendments to the paragraph in the judgment that referred to Ms. Connors as a 'solicitor' were needed, so that it correctly recorded that Ms. Connors was a 'legal executive' and not a solicitor.

44.  Regarding the 2011 action, counsel for the Buttle defendants submitted that the order that was made had mistakenly struck out Mr. Kirwan's motions of 13th November 2018 which related to the 2012 proceedings. They submitted that the order should have re-entered Mr. Kirwan's original motion of 4th December 2012, seeking to set aside the judgment in the 2011 creditor action and should have dismissed that motion. They also provided the Court with a draft order setting out the proposed amendments, which was given to Mr. Kirwan in advance of the hearing.

45.  Meenan J. ordered that the High Court orders of 23rd October 2019 be amended. The amended order of 17th December 2019 accordingly provides that the combined 2013 proceedings be dismissed as against all defendants for inordinate and inexcusable delay on part of Mr. Kirwan, and that the costs of all defendants be awarded against Mr. Kirwan. He also ordered that the text of the judgment be amended to reflect that the title of the first named defendants read 'legal executive' as opposed to 'solicitor' but noted that this mistake did not materially alter his conclusion. Regarding the 2011 proceedings, the amended order of 17th December 2019 directed that Filbeck be at liberty to re-enter Mr. Kirwan's motion to set aside the judgment obtained by it in the 2011 creditor action and that the motion to set aside be refused.

The Court of Appeal

46.  There were three appeals before the Court of Appeal, all of which were dismissed by Power J. in a composite judgment delivered on 26th October 2022: see Kirwan v. Connors [2022] IECA 242. The first appeal related to the order dismissing the combined action on the grounds of inordinate and inexcusable delay (the 'core' appeal). The second appeal concerned the order made by Meenan J. on 17th December 2019 and perfected on 18th December 2019, wherein he amended the earlier orders made on 23rd October 2019 in the combined action, so as to reflect more clearly his judgment in the matter (the 'slip rule' appeal). The third appeal related to the 2012 Buttle action. Mr. Kirwan sought to appeal Meenan J.'s order from 23rd October 2019 wherein he reinstated Mr. Buttle's application to dismiss the 2012 proceedings as being frivolous and vexatious and, thereafter, granted the application.

The First 'Core' Appeal (2019/486) - Mr. Kirwan's Submissions

47.  Mr. Kirwan appealed the High Court judgments and raised the following grounds: the High Court judge erred in law and in fact and denied Mr. Kirwan due process by allowing, inter alia, the defendant to have misled the court by way of false claims, perjury, hearsay, the production of false documents, and the deliberate breaking of "the Solicitors Acts." He argued that, as a result of this, the Court failed to take 'judicial notice' of his affidavits and submissions and, as a result, they were not considered in the determination of where the balance of justice lay. He argued that his 'constitutional and human right to litigate was denied' due to his motions being refused a hearing, to which points and facts of law were suppressed or ignored by the trial judge.

48.  He argued that the High Court ignored the fact that Ms. Connors was 'impersonating a practising solicitor so as to defraud' Mr. Kirwan. He claimed that, in turn, he was denied proper and sound legal advice and the Court should have intervened as per Lynch v. Cooney & Winkworth [2016] IECA 1. He also submitted that the balance of justice was neglected when the High Court did not properly consider various evidence, including affidavits sworn by Barry Kirwan on 7th June 2019 and 17th September 2019, and certain legal submissions from 25th April 2019. He alleged the trial judge further erred in refusing to clarify that the "Solicitors Acts" applied and that he was prejudiced when the judge refused to hear his motion on the 'slip rule' application to correct or amend factually incorrect statements in the court record.

49.  Mr. Kirwan further alleged that the judge erred in finding that the lapse of time had prejudiced the defendants and that he allowed what was described as "the breaking of the law" by neglecting the balance of justice. He argued that there were various errors made in the High Court judgment:

                        i.          The statement that initially the plaintiff had made a proposal that Mr. Buttle would pay €4,000,000 in respect of the properties is false by reference to exhibit number two of the second named defendant's affidavit of 8th November 2019.

                      ii.          Paragraph 4 of the judgment had incorrectly stated that "in the letter of 21st July 2009", the third named defendant assigned his legal rights under a loan agreement to the fourth named defendant. Mr. Kirwan contends that Mr. Buttle only assigned his legal rights under the loan to Filbeck in 2011 and the judgment failed to give due regard to this point.

50.  Mr. Kirwan also stated that Meenan J. erred by refusing to hear his motion to set aside the summary judgment secured by Filbeck against him in the creditor action, which infringed his right to a fair hearing and demonstrated an "unacceptable and undue bias" in favour of the defendants. He stated that the existence of contradictory evidence exhibited in John O'Leary's affidavit of 8th November 2019 undermined "the entirety of the Buttles' false claims made throughout the trial". He claimed that the contradictions include discrepancies over the intention as to the €4,000,000 and disagreements over various dates relating to the contracts entered into between the parties.

51.  Lastly, Mr. Kirwan stated that the High Court erred in resisting his attempts to have the solicitors' files put before the Court, which would confirm the €4,000,000 price for this property. He claimed that the Court erred by failing to accept that the alleged mortgage transaction was fraudulent and fully voidable given that he did not receive proper legal advice and by failing ascertain whether documents relied on by the defendants were authentic in circumstances where there were "so many question marks" over whether they had been executed by himself. He re-stated that he could not have entered into them as he was in France on 5th July 2006, which was the alleged date of which the documents were signed and witnessed.

The Solicitors' Response

52.  In response to Mr. Kirwan's grounds for appeal, the solicitors contend that the High Court correctly found that the balance of justice lay in striking out the proceedings for the following reasons:

                        i.     That as professional persons facing serious allegations affecting their professional standing, they were entitled to have the claims against them determined expeditiously, which had not happened.

                      ii.     That there was a significant risk of an unfair trial and prejudice where the events giving rise to the proceedings were remote in time having occurred in 2006 and where the first named respondent had retired in 2008.

                    iii.     That there was no culpable delay on their part; and

                    iv.     That the proceedings arose from a commercial venture where there were no factors relevant to social background that would warrant the exercise of the Court's discretion in favour of Mr. Kirwan.

The Court of Appeal's Decision

53.  In her judgment, Power J. stated that the core issue of this appeal was whether there was any basis upon which the Court of Appeal should interfere with the High Court findings that the delay in prosecuting the 2013 proceedings was both inordinate and inexcusable and that the balance of justice lay in favour of striking out those proceedings for want of prosecution.

54.  With these factors in mind, Power J. considered the three prongs of the Primor test: (1) whether the delay in question is inordinate; (2) if the delay is inordinate, whether the inordinate delay is inexcusable; and (3) if the delay is both inordinate and inexcusable, whether the balance of justice favours the dismissal of the proceedings.

The First Prong

55.  Power J. found that Mr. Kirwan took no action at all to prosecute his claims from the 2013 proceedings in anything resembling an expeditious manner. She noted that the last step taken in these proceedings happened in January 2014 and throughout 2014, 2015, 2016, 2017, and most of 2018, Mr. Kirwan did nothing to progress them. She stated that Mr. Kirwan's alleged unawareness of the "conventions and remedies" available is not a valid excuse, and he only took action after the defendants' applications to dismiss the proceedings issued in the latter part of 2018. She held that such a failure to take any step whatsoever in proceedings that "on their face, are relatively straightforward" constitutes inordinate delay and that the trial judge's finding in this regard cannot be impugned.

The Second Prong

56.  Power J. considered Mr. Kirwan's excuses for the inordinate delay, namely that: (1) the solicitor respondents failed to reply to the served notice for particulars, (2) MJ O'Connor Solicitors failed to send him his file until 2017, and (3) he was not in a position to institute proceedings until 2013 as he was being sued for legal fees.

57.  With regard to the first excuse, Power J. stated:

"In the absence of any reply to his alleged Notice for Particulars, Mr. Kirwan was not entitled to simply "sit on his hands" and allow the proceedings to stagnate. He had tools available to him to compel the replies he sought and his status as a litigant in person does not absolve him from his responsibilities in this regard."

58.  Regarding the second excuse, she held that similar considerations apply. She stated that Mr. Kirwan could have taken steps to secure the original file if he genuinely believed that the absence thereof was hampering him in the progress of these proceedings.

59.  Turning to the third excuse, Power J. noted that it was presented to the Court of Appeal after the High Court judgment had been rendered and, thus, the High Court did not have the opportunity to consider it. She moreover stated Mr. Kirwan neither sought nor was granted leave to file the affidavit in which this excuse was proffered. She held that, this excuse was accordingly not properly before the Court. As such, she held that the second prong of the Primor test was satisfied.

The Third Prong

60.  Power J. found that, given the thirteen-year passage of time between the disputed events and the High Court applications in this case, she was satisfied that the High Court was correct in finding that prejudice to the solicitor respondents had been established. She stated that the capability of the courts to conduct a fair trial in such circumstances had been compromised, noting that Ms. Connor's recollection of the details of the transaction may have understandably been impaired by the delay.

61.  Regarding the Buttle defendants, Power J. was satisfied that the High Court was correct in finding that Filbeck had been prevented from executing the judgment it obtained against Mr. Kirwan whilst awaiting the outcome of the 2013 combined proceedings. She held that, in these circumstances, there was an even greater onus on Mr. Kirwan to proceed with pace. She held that the High Court was thus correct to find that Mr. Kirwan's failure to do so was prejudicial to Filbeck in its entitlement to proceed with the 2011 creditor action in which it had secured an order for judgment in its favour.

62.  Power J. further held that Mr. Kirwan pointed to no countervailing circumstances on part of the respondents to cancel out the effect of his delay in the proceedings. She noted that while lay litigants may be vulnerable and unfamiliar with court proceedings, such status does entitle them to be treated in a manner that is preferential to that of other litigants who are represented, specifically instituting proceedings and then leaving them to lie unprosecuted, indefinitely. She further held that there was no evidence to support Mr. Kirwan's claim that the High Court judge was biased and unfair towards him. She held that Mr. Kirwan failed to establish any basis for the Court to interfere with the assessment made by the High Court as to what the balance of justice required in this case. She accordingly dismissed the first appeal.

 

The Second 'Slip Rule' Appeal (2020/14) - Mr. Kirwan's Submissions

63.  Mr. Kirwan objected to the defendants' application from December 2019, whereby they requested that certain amendments be made to the orders that were made on 23rd October 2019. Mr. Kirwan restated the errors of law and fact and the denial of due process that were heard in the first appeal and adds that there were wilful and wanton acts that occurred which defrauded the State of mandatory stamp duty. He stated that the High Court assigned a hearing date to the defendants' applications but did so without any motion having been issued and, therefore, without the associated stamp duties having been paid. To this end, he argued that the State was defrauded in the sum of €60 stamp duty on the motion and €20 on an associated grounding affidavit. He stated that this fraud deprived the Court of its jurisdiction and, further, the High Court also erred in refusing to hear his motion pursuant to Ord. 28 to have errors and omissions in the judgment corrected.

64.  Mr. Kirwan also contended that the High Court did not have jurisdiction to change the perfected orders because the original orders were already the subject of an appeal to the Court. He argued that he should not have been burdened with appealing this 'motion' as the order arising from the hearing should have been deemed void ab initio. He stated that the High Court was misled by the respondents and erred in law by changing or interfering with orders made after the 28-day time period within which to appeal them had expired. He claimed this constituted an abuse of process and was prejudicial to him.

65.  Lastly, he submitted that the High Court judgment from 2nd September 2019 was void in light of new evidence which emerged, but which was "withheld" from the court, thus pointing to "malicious deception" on the part of the Buttle defendants. He stated that the John O'Leary's affidavit from 8th November 2019 exhibited a number of documents that were withheld from both him and the High Court, to which he argued that the court "turned a blind eye" to the fact that Ms. Connor's "masqueraded" as a solicitor when she was not one.

The Solicitors' Response

66.  The solicitors raised a number of points in response:

                           i.            First, they stated that the corrections brought the perfected order into conformity with the orders as pronounced by the High Court on 23rd October 2019 and reflected the judgment of 2nd September 2019.

                        ii.            Second, they contended that the order of 17th December 2019 was made by the court pursuant to its inherent jurisdiction.

                      iii.            Third, they stated that the affidavit of John O'Leary appears to be an affidavit delivered in a separate set of proceedings before the Solicitors Disciplinary Tribunal.

                       iv.            Fourth, they rejected all allegations made against them regarding the alleged suppression of information or documents and misleading the court.

                         v.            Fifth, they objected to Mr. Kirwan's 'inappropriate' attempt to raise unrelated issues that were first aired in motions before the High Court on 23rd October 2019 and in the affidavit of Mr. Kirwan's son, Mr. Barry Kirwan, on 17th September 2019.

The Buttles' Response

67.  The Buttle respondents opposed this appeal in its entirety, stating that they were not the proper parties to this issue since it was the application of the solicitor respondents made on 17th December 2019 that resulted in the Order made under Ord. 28, r. 1 RSC that was the subject of this appeal.

 

The decision of the Court of Appeal

68.  Power J. held that no fraud took place regarding the State's alleged loss of €80, as there was no evidence to suggest any criminal intent in failing to issue a motion. She stated that while Mr. Kirwan may have perceived preferential treatment being afforded to the respondents in their being permitted to approach the court in the manner they did, while his formally lodged application was not entertained, it was within the High Court's discretion to approach the issue the way it did.

69.  She added that there was no comparison between the parties' applications, as the one made by the respondents sought to correct errors on the face of the orders made on 23rd October 2019, while Mr. Kirwan sought to raise issues that could not "under any guise be characterised as a "slip" or an "error"." To this end, she held that the High Court was entitled to take the view that Mr. Kirwan was attempting to raise matters that had already been dealt with in its judgment. Thus, the decision not to allow Mr. Kirwan to proceed with that application was justified and could not be impugned.

70.  Regarding the issue of the High Court's jurisdiction, Power J. noted that it is true that the notice of appeal in the core appeal dated back to 26th November 2019, which was prior to the amendments ordered on 17th December 2019. However, she stated that the fact that the Court of Appeal had "seisin" of the appeal did not deprive the High Court of its jurisdiction to correct a technical error in the record. She also did not find any prejudice to Mr. Kirwan by the High Court permitting the amendments to be made, since those amendments were entirely in line with what the High Court found in his judgment, which was then under appeal.

71.  Power J. accepted the solicitor respondents' contention that Mr. Kirwan's attempt to rely on John O'Leary's affidavit from a separate set of proceedings before the Solicitors' Disciplinary Tribunal was also misplaced, as it had no relevance to the issues in the present appeal. She also held that the Buttle respondents were not proper parties to this appeal since they were not involved in the motion that led to the amendments to the 17th December 2019 order. Power J. accordingly dismissed the second appeal.

The Third Appeal (2019/485) - Mr. Kirwan's Submissions

72.  Mr. Kirwan submitted that the High Court erred in striking out the 2012 action as a result of his decision to dismiss the 2013 combined proceedings for want of prosecution. He argued that the 2011 creditor action was not suitable for summary proceedings and that the Buttles had been served with the 2012 proceedings. He stated that the High Court refused to hear his motion to set aside the judgment obtained in the 2011 creditor action, which amounted to an infringement of his right to a fair hearing. He stated that there was ample evidence of serious issues and deception at play throughout the proceedings. He argued that on the day following the service of the 2012 proceedings, the Buttle respondents lodged "judgement papers", and this "abuse of process" was not dealt with in the judgment. He also argued that the High Court erred in finding that the judgment in the 2011 creditor action proved beyond all reasonable doubt that the respondents were not liable, which was prejudicial to him.

Mr. Buttle's Response

73.  Mr. Buttle submitted that the High Court correctly struck out the 2012 proceedings, given that the material issues therein were, in substance, the same as those in the 2013 combined action. He stated that the High Court correctly concluded that the finding of the appellant's inexcusable and inordinate delay in the 2013 combined action was equally applicable to his prosecution of the 2012 action. He moreover stated that the continued prosecution of the 2012 proceedings would be frivolous and/or vexatious because (a) the issue has already been determined by a court of competent jurisdiction; (b) the action obviously cannot succeed; it would lead to no possible good and no reasonable person could expect to obtain the reliefs sought by the appellant in the case; and (c) the appellant had failed to pay the costs of his unsuccessful 2013 combined action. Lastly, he contended that, having regard to the outcome in the 2013 combined action, the matters in the 2012 Buttle action are res judicata, therefore the continued prosecution of the 2012 proceedings would amount to an abuse of the court's process.

The Decision of the Court of Appeal

74.  Power J. held that the High Court was entitled to strike out the 2012 proceedings for several reasons. First, she noted that it was clear from the terms of the order made on 5th December 2013, that the 2012 proceedings were, formally, before the High Court when the 2013 proceedings were being dealt with, thus, the High Court was entitled to hear and determine any application that was made to the court in respect of the 2012 proceedings.

75.  Second, she pointed out that the application that was before the court on 23rd October 2019 in the 2012 proceedings was the respondent's motion to re-enter the adjourned application seeking to strike out that action for being frivolous and vexatious and/or for disclosing no cause of action. She noted how, in seeking to re-enter that motion, Mr. Buttle specifically linked his application to dismiss the 2012 case to the delay in prosecuting the related 2013 claim.

76.  Third, she noted how when Mr. Kirwan sought to adjourn the 2012 proceedings back in 2013, he claimed that it would be 'inappropriate' to hear that (2012) case until the outcome of the 2013 action was known. She found that this demonstrated a clear acknowledgment, on Mr. Kirwan's part, that the outcome of the combined action would have a bearing on the 2012 claim.

77.  Notably, Power J. accepted that the High Court did not analyse the 2012 proceedings regarding their allegedly 'frivolous' or 'vexatious' nature. That said, she was of the view that, with the 2013 proceedings being dismissed, the 2012 case left in the aftermath could well come within the meaning of 'vexatious' as interpreted in case law. She referenced Kearney v Bank of Scotland [2018] IEHC 265, where McGovern J. observed at para. 22 that:

'In Ewing v Ireland [2013] IESC 44, McMenamin J. at para. 28 adopted the views of Ó'Caoimh J. in Riordan v Ireland (No. 5) [2001] 4 I.R. 463, who set out the following issues as tending to show that litigation was "vexatious": -

"(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction.

(b) where it is obvious that an action that cannot succeed, or if the action could lead to no possible good, or if no reasonable person could reasonably expect to obtain relief.

(c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights.

(d) where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings.

(e) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings.

(f) where the respondent persistently takes unsuccessful appeals from judicial decisions."'

 

78.  She found that the 2012 proceedings fell within (b) and (d), having been "rolled forward" or "repeated" and it was obvious that they could not proceed. She was satisfied that Mr. Kirwan could not reasonably expect to obtain the relief he sought from the 2012 action when: (i) the claims he made against Mr Buttle in that case were subsumed into the 2013 combined action; (ii) he failed to prosecute either set of proceedings for a period of at least five years; (iii) the 2013 combined action was struck out for his inordinate and inexcusable delay; and, (iv) the delay in the 2012 action was even longer than the delay in the 2013 combined action. She accordingly dismissed the third appeal.

Part IV - Submissions to the Supreme Court and the grant of leave

79.  Mr. Kirwan sought leave to appeal to this Court on the grounds that neither the High Court nor the Court of Appeal engaged with the substance of his case. He described his representation by Ms. Connors as a "constitutional violation" and he claims that it led to him being defrauded. The various respondents maintain that no stateable ground of appeal has been identified. They contend that the case does not give rise to constitutional issues, that the principles in relation to time limits for bringing appeals is well established and not in need for clarification, and that there is no matter of general public importance at issue.

80.  On 16th March 2023 this Court granted the plaintiff, Mr. Kirwan, leave to appeal: see Kirwan v. Connors [2024] IESCDET 34. The Court noted that it had not had the opportunity to examine the functioning of the Primor principles, not least since the establishment of the Court of Appeal since 2014. The present appeal accordingly entails a reconsideration of the general delay jurisprudence in civil matters and the application of these principles to the facts of the present case.

81.   Following the original hearing of this appeal in April 2024, this Court concluded that the practical importance of this appeal warranted the re-opening of the oral hearing. The Chief Justice accordingly directed that the case be re-heard before an extended composition of the Court now sitting with seven judges. The Attorney General was also invited to participate in the appeal. The Court took the opportunity to pose certain additional questions to the parties and to the Attorney General.

Part VI - Reviewing the earlier case-law

The earlier case-law: from Dowd and Ó Domhnaill to Toal v. Duignan

82.   While a comprehensive review of the case-law both prior to Primor and (especially) thereafter would probably run to hundreds of paragraphs, it may nonetheless be useful to touch lightly on the reasoning contained in some of the more important cases concerning undue delay.

83.  We may commence with the decision of this Court in Dowd v. Kerry County Council [1970] IR 27. This was a medical negligence claim arising out of an operation performed in July 1962. The plaintiff issued a plenary summons in June 1964 and later obtained an extension of time for the delivery of the statement of claim. The plaintiff's solicitor thereafter sought to interview the nurses who attended the operation and to obtain medical records. In 1968 the second defendant (the surgeon) brought a motion seeking a dismissal of the action claiming that he had been assisted by a surgical registrar whose present whereabouts were unknown and that a named nurse who had attended him had also left the jurisdiction.

84.  The action was struck out by the High Court, but before the appeal to this Court was due to be heard the plaintiff's solicitor swore an affidavit explaining that he had now made contact with the surgical registrar who was now willing to give evidence and that he had also been in correspondence with the named nurse. Perhaps not entirely surprisingly in these changed circumstances this Court allowed the appeal. The case had been treated as a prejudice case in the High Court, but as Ó Dálaigh C.J. remarked ([1970] IR 27 at 41):

"On examination, the element of prejudice which is relied upon by the defendants is being shown to be virtually non-existent. In these circumstances the Court should not allow the delay which has occurred to prevent the plaintiff's case being brought to trial. It would be unjust to do so. I do not overlook that a share of the delay must be laid at the door of the County Council's offices."

85.   The Chief Justice also drew attention to the Council's inactivity and its failure to utilise the provisions of (what are now) Ord. 27, r. 1 and Ord. 122, r. 11, pithily remarking in the process that the "adage about sleeping dogs may be wise, but it is not specifically conceived to advance the cause of justice." He also signalled a less unyielding approach to delay than he had noticed in some of the then recent English case-law such as Fitzpatrick v. Batger & Co. Ltd. [1967] 1 WLR 706, saying that he could not "follow on this imperious path if it is more than an attempt to signpost the highway for lethargic litigants. Our rules indicate that a less authoritarian approach is proper....": see [1970] IR 27 at 42.

86.   This decision calls for three remarks. First, judged by contemporary standards and the delays which have manifested themselves in the subsequent case-law, the delay in Dowd was not especially long. Second, the characteristically humane and flexible approach of Ó Dálaigh C.J. may possibly have inadvertently contributed in part to the culture of delay and "endless indulgence" which was to come later.  Third, while the application of Ord. 122, r. 11 was certainly mentioned in passing in  Dowd, the significance of this rule seems at times to have been under-appreciated - even overlooked - in the subsequent plethora of case-law.

87.  By the 1980s, however, judicial attitudes had begun to change. The courts were now regularly encountering delays far longer than those which had been at issue in Dowd. Thus, for example, in Keane v. Electricity Supply Board  [1981] IR 44 at 53  Henchy J. objected to the fact that there had been a fourteen year delay in bringing on a personal injuries action in respect of a serious accident involving the plaintiff when he was eleven years old: "Such delay, for which no explanation has been vouchsafed, could hardly be described as providing the ideal route to a just and fair trial."     

88.  In the previous year in Cahill v. Sutton [1980] IR 269 this Court had held that the plaintiff lacked the standing to challenge the constitutionality of the limitation provisions of the Statute of Limitations because she had at stages known of the facts which, if established, would have grounded her action for negligence against her treating doctor. Henchy J. again observed ([1980] IR 269 at 287) that:

"The plaintiff's lack of standing to raise the constitutional point is aggravated and compounded by her inordinate and inexcusable delay in initiating and prosecuting her claim...At this remove it would be virtually impossible for the personal representatives to defend this claim on the merits, now that Dr. Sutton has died almost 12 years after the alleged acts of negligence took place."

89.  Around the same time this Court gave judgment in O'Keeffe v. Commissioners of Public Works  (Supreme Court, unreported, 24th March 1980). Here Henchy J. held that the plaintiff could not now proceed with an action in respect of an industrial accident which had occurred some 24 years previously, saying:

"If the plaintiff were now to be allowed to proceed with the claim in negligence, notwithstanding those long years of silence and inactivity, the hearing would take place over twenty-three years after the alleged act of negligence. The uncontroverted evidence put forward in an affidavit filed on behalf of the defendants shows that there were only two witnesses to the alleged act of negligence, that of those one has died and the other's memory of the event has been all but obliterated by the passage of time; and that the store in which the accident took place has been redesigned out of all recognition. A hearing in those circumstances would be a parody of justice, for it would come about at a time when the defendants, through no fault of their theirs, had been deprived of any true opportunity of meeting the plaintiff's case."

90.   Similar sentiments were expressed by this Court in Sheehan v. Amond [1982] IR 235. Here the plaintiff had commenced proceedings for personal injuries in 1969 in respect of an injury which had occurred in 1966 when he was just 10 years of age. Although the proceedings had been issued just before the end of the limitation period, very little action was taken thereafter. Henchy J. held that this action should be struck out ([1982] IR 235 at 238-239):

"Eight long years were now allowed to pass without a single procedural step being taken by the plaintiff's solicitor with a view to bringing the action to trial....After eight years of silence, after the infant plaintiff had grown from childhood to manhood, when memories of the circumstances of the accident had inevitably become dulled or distorted with the passing years, when the scene of the accident may possibly have changed, when medical  and other evidence may have lost sharpness or reality, when money values had changed out of all recognition, when the many other changes that are the inevitable consequences of the fading of events into the distant past must have taken place, is it any wonder that in those circumstances the response of the defendant to the belated efforts of the plaintiff's solicitor to resuscitate this seemingly entombed action was to bring a motion to have it struck out?"

91.   This was the series of case-law that culminated in the landmark decision of Ó Domhnaill v. Merrick [1984] IR 151. Here the plaintiff was seriously injured in a car accident in 1961 when she was three years old. In 1977 a plenary summons was issued against the driver of the vehicle, but another four years were allowed to elapse without the delivery of a statement of claim. When in May 1982 the Master of the High Court extended the time for the delivery of a statement of claim, the defendant then appealed that order while simultaneously bringing a motion to dismiss the proceedings for want of prosecutions. The High Court allowed that appeal and struck out the proceedings. The plaintiff then appealed to this Court. Delivering the judgment of the majority, Henchy J. pointed out that if the case were allowed to proceed the hearing would take place almost 24 years after the accident ([1984] IR 151 at 157):

"The question to be answered in this appeal, therefore, is whether the defendant should be required in the circumstances to seek to rebut an allegation of negligence on her part in an accident that happened virtually a quarter of a century before the trial, and to meet a claim for heavy damages for personal injuries suffered by the plaintiff in that accident, when she first learned of such a claim 16 years after the accident."

92.  Henchy J. concluded that the delay in question was inordinate and inexcusable and there were no countervailing circumstances which would justify a disregard of that delay. He concluded his judgment by stressing that the constitutional principles of fair procedures "may be invoked to justify the termination of a claim which places an inexcusable and unfair burden on the person sued." He also drew attention - in pre-European Convention of Human Rights Act 2003 days - to the State's obligations under Article 6(1) of the European Convention of Human Rights which guarantees that everyone "is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law."

93.  The emerging jurisprudence is well illustrated by the two decisions of this Court in Toal v. Duignan (No.1) [1991] ILRM 135 and Toal v. Duignan (No.2) [1991] ILRM 140.  The background to this litigation was that the plaintiff had been born with an undescended testicle which was not diagnosed at the time. The plaintiff said that he had only received a true diagnosis of his condition in 1983 and that he shortly thereafter commenced proceedings against a range of medical practitioners and hospitals.

94.   In Toal (No.1) this Court held that the actions against certain individual medical personnel and one of the hospitals should be struck out even though the delays were not at all the fault of the plaintiff.  For various reasons there were no adequate records maintained or available in respect of the treatment which the plaintiff had received. As Finlay C.J. explained ([1991] ILRM 135 at 138-139):

"It would be impossible for either the hospital authorities, or the consultants engaged, in the absence of most detailed clinical notes and records, to defend themselves 26 years on from attendance at a birth in 1961. It is wholly impossible, the death having occurred of both the gynaecologist and paediatrician concerned for either the Hospital or for the widow sued as a personal representative of the paediatrician to defend themselves in any way against the allegations which are being made against then."

95.   Finlay C.J. went on to say that this was an example of O'Domhnaill v. Merrick-style prejudice, i.e., where the lapse of time has meant that a defendant who has not contributed to the delay could not themselves be fairly expected to defend the claim on the merits, even though the plaintiff himself was not at fault. It may also be compared with the similar reasoning of this Court in O'Keefe v. Commissioners of Public Works in 1980.

96.  In Toal (No.2) this Court applied similar principles but, in this instance, unanimously held the claims against the two of the three hospitals should proceed on the basis that there were medical records available. Finlay C.J. also placed some emphasis on the fact that some of the medical personnel associated with those hospitals had stated that they could recollect treating the plaintiff and were available to give evidence. A majority of the Court held, however, that an action against an individual medical practitioner should be struck out on O'Domhnail v. Merrick grounds.  In his dissent on this question, McCarthy J. accepted that the O'Domhnaill jurisdiction was "founded upon constitutional principles of fairness", although he held that the jurisdiction should not have been applied on the specific facts of the case given that the plaintiff was personally blameless for the delay.

The decision in Primor

97.   It is next necessary to consider the decision in Primor itself. Here the company had brought an action for negligence against two sets of auditors in respect of the accounts which obtained up to the early 1980s. The proceedings issued late in 1984 and were not served for a year. A statement of claim was not delivered in the first case until early January 1986. Orders for discovery and cross-orders for discovery were made in early 1984 but by 1994 there still had been just limited progress. Although in the first set of proceedings which came before the High Court O'Hanlon J. found that the plaintiff had been guilty of inordinate and inexcusable delay in the context of proceedings of this nature, he refused to strike out the proceedings because of the fact that the plaintiff had already incurred significant expense as a result of compliance with the cross-order for discovery.

98.  In the second set of proceedings the defence was filed in February 1990 and discovery orders were made in July 1990. In February 1995 Johnson J. refused to strike out the proceedings on the grounds of inordinate delay, essentially for the same reasons as had been given by O'Hanlon J.: see [1996] 2 IR 459 at 485, per Hamilton C.J. Both sets of defendants duly successfully appealed to this Court.

99.  Having set out what is now known as the Primor three-prong test (the details of which I have already taken the liberty of setting out), Hamilton C.J. observed that having found that the delay was inordinate and inexcusable, the respective trial judges were then obliged to consider whether "the balance of justice was in favour of or against the proceeding of the case." The Chief Justice continued ([1996] 2 IR 459 at 485-486):

"The delay on the part of a defendant if it existed, or acquiescence by the defendant in the plaintiff's delay if found, may be ingredients in the exercise by the court of its discretion but they are not the only ingredients.

The question to be further considered by the court is whether, in the special facts of the case, the delay and consequent prejudice to the defendant is such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action."

100.   Hamilton C.J. then listed a range of specific items of prejudice to the defendants, including the reputational damage which they had suffered; the changes to auditing standards in the intervening years and the fact that many of the staff who worked on the audits had either left the company (often to work abroad) or were retired or dead. Hamilton C.J. concluded that this prejudice was such "as to place an inexcusable and unfair burden" on the defendants such as to "make it impossible that a fair trial between the parties can now be had".  It seems clear from this judgment that this jurisdiction was based on the principle that "the courts have an inherent jurisdiction to control their own procedure": see [1996] 2 IR 459 at 475.  There was, however, no real discussion of the nature of that inherent jurisdiction. Denham J. agreed with Hamilton C.J. O'Flaherty J. delivered a separate concurring judgment which traversed much of the same ground as that of the Chief Justice, but which also stressed the fact that the claim on the merits seemed poor: see [1996] 2 IR 459 to 521.

101.   As is perhaps so often the case with major judicial decisions of this nature the subsequent case-law has sometimes tended to treat the comments of both Hamilton C.J. and O'Flaherty J. almost as if they were statutory provisions. The subsequent case-law also shows that a degree of formalism sometimes crept in, often accompanied by a mechanistic application of these criteria.

The post-Primor cases: 1996 to 2014

102.    The decision in Primor set the benchmark for the majority of the subsequent case-law. I propose now to summarise some of the leading decisions during the period which stretches from the decision in Primor itself to the establishment of the Court of Appeal in October 2014. This summary is necessarily selective, and it is intended simply to capture some of the more important trends which emerged in the first twenty years or so since the decision in Primor: many of these trends (including the early Court of Appeal delay jurisprudence) are helpfully summarised by Biehler, "Dismissal of Proceedings on Grounds of Delay: Recent Developments" (2016) 55 Irish Jurist 175.

103.   We may start with the decision of this Court in Anglo-Irish Beef Processors Ltd. v. Montgomery [2002] 3 IR 510. Here the parties had entered into a share purchase agreement in June 1989 whereby the first plaintiff had acquired the liabilities of the second plaintiff company for a nominal sum. The first plaintiff later maintained that the net liabilities of the company was in fact greater than that agreed and called upon the defendants for an indemnity under the terms of the agreement. The defendants maintained that the agreement did not reflect what was agreed and, indeed, had issued third party negligence proceedings against their former accountants and financial advisers. One of the defendant's key financial advisers - who it was said would have confirmed the defendants' understanding of what had been agreed between the parties - had subsequently died.   

104.   The proceedings had commenced in 1989 and the pleadings closed in 1994. Beyond the service of three separate notices to proceed, no action was then taken until early 2001 when, following an application by the plaintiffs to amend their pleadings, the defendants then brought a motion seeking to have the proceedings dismissed. In the words of Keane C.J. "no explanation whatever was given for quite staggering lethargy with which these proceedings were pursued" and, moreover, it could not be said that "the defendants in any way acquiesced in the inaction of the plaintiffs": see [2003] 3 IR 510 at 515. The Court pointed to these striking delays, coupled with the fact that a key witness had died. Keane C.J. concluded that in these circumstances there was a substantial risk "that it is not possible to have a fair trial and that it has caused serious prejudice to the defendants": see [2003] 3 IR 510 at 516.

105.   In the wake of the comments of Hardiman J. in Gilroy v. Flynn to which I have alluded at the start of this judgment there then followed a further series of delay cases. One can say that these judgments find the courts feeling their way in the light of the growing realisation of the potential importance of Article 6 ECHR following the (admittedly partial) incorporation of the ECHR by the European Convention of Human Rights Act 2003: see, e.g., Rodenhuis and Verloop BV v. HDS Energy Ltd. [2010] IEHC 465, [2011] 1 IR 611 at 615, per Clarke J.. One also finds the courts drawing attention to the fact that they are called upon by Article 34.1 of the Constitution to administer justice, so that as I put it in Donnellan v. Westport Textiles Ltd. [2011] IEHC 11, "the speedy and efficient dispatch of civil litigation is of necessity an inherent feature of the court's jurisdiction under Article 34.1."

106.   Two consistent themes also emerge from the jurisprudence from this period. First, there is an acknowledgement that "delay which would have been tolerated [in the past] may now be regarded as inordinate" and that "[e]xcuses which sufficed may no longer be accepted": see Stephens v. Paul Flynn Ltd. [2005] IEHC 148, per Clarke J. (This decision was approved on appeal to this Court: see [2008] IESC 4, [2008] 4 IR 31). Second, there is a recognition that there is a need for a stricter judicial attitude, since to do otherwise would simply encourage a culture of delay. As Clarke J. put it in Rodenhuis ([2011] 1 IR 611 at 617):

"To the extent that it become clear that parties will be significantly indulged even though they engage in delay, then the fact is only likely to encourage delay. If parties feel they can get away with it, and if that feeling is justified by the response of the courts, then there is likely to be more delay."

107.   To all of this one might add another consideration, namely, that there was a public interest in not permitting stale and long-running claims taking up the valuable resources of the courts at the expense of those litigants who had in fact acted in an appropriately timely fashion. This principle was expressly articulated by Peart J. in Byrne v. Minister for Defence [2005] 1 IR 577 at 585.  As I put it in Quinn v. Faulkner [2011] IEHC 103:

"The public interest thus requires that the courts take active steps in relation to undue delay, since a failure to do so will simply encourage delay across the legal system. A further consideration is that, as Peart J. pointed out in Byrne, delays of this kind create additional burdens for the legal system by detracting from their general efficiency and effectiveness."

108.   One other decision of this Court from this period which deserves special mention is the decision of Geoghegan J. in McBrearty v. North Western Health Board [2010] IESC 27. This was a case where the plaintiff was born with severe disabilities in 1981. At the time the plaintiff's parents were informed that it was simply a misfortunate event. When the young man reached 18, his family was informed that the circumstances of the birth should be investigated. After some initial delays, the proceedings were commenced in 2001. There were then a further series of motions and amended defences during the period up to 2007. At this point the various defendants brought motions to dismiss the proceedings. In the High Court MacMenamin J. held that although that there had been inordinate and inexcusable delay, the balance of justice nonetheless favoured allowing the action to proceed to trial.

109.   On appeal, this Court distinguished between the position of the physicians on the one hand and that of the health board on the other. Geoghegan J. held that the doctors had suffered real prejudice as it was no longer clear that they would enjoy indemnity cover in respect of an incident which took place twenty-nine years previously. The position with regard to the health board was different, not least given that it was its own insurer and there was, moreover a comprehensive written record in respect of the disputed events. The reasons given by Geoghegan J. are, however, of interest:

"Most legal practitioners regard, and in one sense, quite reasonably regard the judgment of Finlay P. in Rainsford v. Limerick Corporation [1995] 2 ILRM 561 combined with the judgment in this court by Hamilton C.J. in Primor plc v. Stokes Kennedy Crowley [1996] I.R. 459 as the seminal case law on applications to dismiss for want of prosecution and particularly on the inherent jurisdiction of the court to grant such an order quite apart from breaches of time limits under the Rules of the Superior Courts. Those cases, however, have an older ancestry that is worth considering for the purposes of this appeal. There is also an important and partly overlapping jurisprudence deriving, in the main, from decisions of this court in O'Domhnaill v. Merrick [1984] I.R. 151, Toal v. Duignan (No. 1) [1991] ILRM 135 and Toal v. Duignan (No. 2) [1991] ILRM 140. The importance of this latter jurisprudence is that even in a case where there has been no fault on the part of the plaintiff, the court, in certain circumstances, in the interest of justice may accede to a defendant's application to have the proceedings struck out."

110.   While McBrearty accordingly confirms the primacy of the Primor test, the judgment of Geoghegan J. also makes it plain that there are, in fact, two separate - albeit overlapping - strands of jurisprudence in this area. As Geoghegan J. observed with particular reference to O'Domhnaill v. Merrick:

"The first observation I would make is that it is clear from this line of authorities and indeed from other cases that the inherent jurisdiction to strike out a case for delay in certain circumstances in the interests of a defendant may be exercised taking into account delay in the institution of proceedings. Notwithstanding that that is not a particular issue in this case, I mention it to emphasise the paramount inherent jurisdiction derived from the Constitution. ...Later cases would seem to indicate that even though it can form part of an application to dismiss for want of prosecution as indicated by Hamilton C.J. in Primor, the inherent jurisdiction can be exercised independently of the Rainsford principles." (emphasis supplied)

111.   Having examined the decisions of this Court in Toal v. Duignan (No. 1) [1991] ILRM 135 and Toal v. Duignan (No.2) [1991] ILRM 140, Geoghegan J. concluded:

"If I am right in my view that there was not inordinate and inexcusable delay then the action must be allowed to proceed unless it would be fundamentally unfair to any particular defendant because of his special circumstances to have to defend the action thereby legitimately invoking the inherent jurisdiction of the court which can be exercised even in the absence of fault on the part of the plaintiff."

112.   Geoghegan J. accordingly held that an action against the two individual clinicians in circumstances where it was not clear that they would be indemnified against any potential liability should not be permitted, even though there was no finding as such of inordinate and inexcusable delay. This was a critical factor which differentiated their circumstances from that of the defendant health board, as the Supreme Court found that the balance of justice should enable the action to proceed against that particular defendant.

113.    As I was later to remark in Donnellan v. Westport Textiles Ltd. [2011] IEHC 11:

"The significance of this so far as the present case is twofold. First, Geoghegan J. expressly confirmed that the Primor principles were not to be regarded as exclusive or all-encompassing and, second, that the Court's constitutionally derived inherent jurisdiction could be exercised even though some elements of the Primor test had not been established."

114.   Geoghegan J. also stressed - albeit, perhaps, in concluding obiter comments - that the decision in Primor remains the law and that this and similar decisions "have stood the test of time." He also cautioned about attributing too great a significance to the impact of the ECHR in respect of these tests. Geoghegan J. had indeed already expressed sentiments in Desmond v. MGN Ltd. [2008] IESC 56, [2009] 1 IR 737 at 742 when he said that the ECHR case-law relating to delay did not justify "reconsideration of these [Primor] principles or in any way modifies those principles."

The case-law from 2012 to 2017

115.   I now propose to review the case-law of the earlier part of the last decade or so. The major institutional change during this period was, of course, the enactment of the 33rd Amendment of the Constitution Act 2013 and the subsequent establishment of the Court of Appeal in October 2014. This in itself was not, I think, a reason for any change in the courts' practice with regard to undue delay. The Court of Appeal did, however, receive upwards of one thousand cases which had been transferred to that Court pursuant to Article 64 of the Constitution. Many of those transferred cases were of great antiquity and some of them had been dormant for appreciable periods of time.

116.   While the subsequent case-law of the Court of Appeal on the topic of delay is really no more than a diligent application of Primor principles, some of the judicial dicta display an understandable judicial unease regarding the antiquity of these cases which were then presenting before that Court and the implications such delay might have for the reputation of the legal system. One can see this concern - impatience even - displayed in some of the early decisions of the Court of Appeal such as Collins v. Minister for Justice, Equality and Law Reform [2015] IECA 27; Tanner v. O'Donovan [2015] IECA 24 and Millerick v. Minister for Finance [2016] IECA 206. One can therefore but sympathise with the sentiments expressed, for example, by Irvine J. in Collins. In that case serious allegations of inappropriate behaviour had been made against particular Gardaí following the multiple arrests of the plaintiff. She considered that a delay of over ten year was inordinate and inexcusable and that the balance of justice favoured dismissal:

 "...in considering where the balance of justice lies in this case, it is important to recognise that in dismissing a claim such as the present one the court is, in effect, revoking the plaintiff's constitutional right of access to the courts. However, that is not an unqualified right and is one which must be considered against the backdrop of the other competing rights in the case, namely; the right of the defendants to protect their good name as is their entitlement under Article 40.3.2⁰ and the court's own obligation to administer justice in a fair and timely manner as is to be inferred from Article 34.1. Nobody against whom serious allegations of the nature at the heart of these proceedings are made, particularly where their professional reputation is at stake, should have to wait 10 or more years before being afforded opportunity to clear their good name. Neither should they have to do so in circumstances where a court is satisfied that a fair trial and a just outcome can no longer be assured."

117.   In Millerick the Court of Appeal dismissed what appears to have been a routine personal injuries action on the ground of inordinate and inexcusable delay. The accident had occurred in 2007 and the proceedings were issued just inside the limitation period. Although Irvine J. noted that the case was ready for trial in January 2011 a further four years total inactivity followed. Since there were negotiations with other parties arising out of this accident it seems that this file was overlooked by the plaintiff.

118.   The Court found that these delays were inordinate and inexcusable and struck out the claim. While it is unnecessary to express a view as to the correctness of the outcome of this decision, it may be noted that the judgment does not rest on the application of Ord. 122, r. 11 RSC. In future - as this judgment will presently indicate - it is to be expected that a defendant would first bring a motion pursuant to Ord. 122, r. 11 at some point after the two-year period had expired

119.    Before considering more of this post-2014 jurisprudence, I should pause to mention two decisions of this Court from 2012 and 2013 respectively. The first decision, Comcast International Holdings Ltd. v. Minister for Public Enterprise [2012] IESC 50, concerned an action arising from the award of second mobile telephony licence. The circumstances of that award had been the subject of much public controversy and were later thoroughly investigated by the Moriarty Tribunal. While this action had been much delayed, this Court ultimately refused to strike out the proceedings, essentially because much of this same material was being investigated by the Tribunal and, moreover, the State parties were aware - at least tacitly - that the proceedings were being delayed for this very reason.

120.    Of course, Comcast was a highly unusual case and it is striking that this Court ultimately held that the delay in question was actually excusable. The real significance of Comcast is the re-affirmation by McKechnie J. of the fact that there exists an independent and separate jurisdiction to strike out which is separate and distinct from Primor [at 40]:

"As the motions which issued in these proceedings disclose, the dismissal relief is sought not only for failing to prosecute but also on the basis of the interests of justice. That the courts have such an inherent jurisdiction cannot be doubted. It surfaced in O'Domhnaill, was further established in Toal (No.1) and Toal (No.2), and since then, in several cases, has been accepted without question. It has a somewhat distinct basis and separate existence from Primor, but many of the matters relevant for its application are common to both. The test to be applied has been described variously such as, by reason of lapse of time or delay:

(i) is there a real and serious risk of an unfair trial, and/or of an unjust result;

(ii) is there a clear and patent injustice in asking the defendant to defend; or

(iii) does it place an inexcusable and unfair burden on such defendant to so defend?

The justification for the existence of this jurisdiction was described by Finlay C.J. in Toal (No. 2), a case in which the plaintiff was blameless for the delay involved and where the proceedings were issued within the permitted statutory period, as stemming from the supremacy of the court's constitutional obligation which transcends any legislative provision to achieve justice inter partes. No specific article of the Constitution was quoted in this regard, but the administration of justice and the personal rights provisions, must have been intended."

121.    McKechnie J. then proceeded to examine at least some of the differences between these overlapping jurisdictions [at 42]:

"There are a number of features to this jurisdiction which are worthy of note: firstly that it applies even if the proceedings are instituted within the statutory period prescribed for by the Oireachtas; secondly, that a defendant can succeed in avoiding a merit hearing even where a plaintiff is entirely blameless for the delay, in either in a personal or a vicarious sense; and thirdly, that the time period looked at, commences from the date of the alleged wrongful acts and continues to the anticipated date of trial. In addition, however, it also has the distinct feature of its focus being on the defendant as appears from the descriptive nature of the test as given, the criterion essentially is defendant directed. This is in stark contrast to the Primor principles where the positions of both are equally considered. It is therefore clear that this is a wider jurisdiction than Primor with a lower threshold to surmount before its successful invocation. That distinction, coupled with the others as identified, makes this jurisdiction one which should be sparsely used and little availed of. I fully agree with the words of Hogan J. in Donnellan v. Westport Textiles Ltd. [2011] IEHC 11 where in this context, the learned judge, having stated that such jurisdiction permits the court in an appropriate case to "strike out proceedings, even though the third limb of the Primor test might not have been established", went on to caution that, "[o]f course, such cases would have to be exceptional".

122.    As it happens, this Court's decision in Whelan v. Lawn [2014] IESC 75; [2014] 3 IR 30 is a relatively rare example of where the separate O Domhnaill v. Merrick jurisdiction was applied. Here a relative of the deceased sued his estate in respect of various episodes of sexual assault which were said to have occurred some twenty-two to twenty-five years previously.  As there was, however, no other evidence in the case potentially available to the personal representatives of the defendants, this Court held that a fair hearing was not possible in the circumstances. The claim was accordingly struck out on O'Domhnaill grounds.

123.   One other case from this period deserves to be mentioned: Lismore Builders Ltd. v. Bank of Ireland Finance Ltd. [2013] IESC 6. This was another long-running case with the proceedings stretching over some twenty-two years. While the preponderance of the blame lay with the plaintiff company, the defendants were also held not to be free from blame either. MacMenamin J. concluded that the striking of the proceedings would be too "draconian a remedy": he directed that the proceedings be stayed on condition that the plaintiff's claim be properly particularised and advanced within strict time-limits.

124.   Turning now to the jurisprudence of the Court of Appeal, two cases from 2016 and 2017 display what might be thought was a rigorous approach to the application of the Primor principles. Thus, for example, in Millerick v. Minister for Finance [2016] IECA 206, Irvine J. held that a relatively routine personal injuries action should be struck out where four years and elapsed from the close of pleadings and no further action whatever had been taken by the plaintiff. The accident in question had allegedly taken place in March 2007. No excuse of any kind had been given for the failure to advance the proceeding and nor had the Minister been culpable in any way.

125.   Irvine J. held that that there had been inordinate and inexcusable delay. So far as the balance of justice was concerned, she drew attention to the obligation deriving from Article 34.1 to ensure that litigation is conducted in a timely fashion. This mean that where there had been inordinate and inexcusable delay "even marginal prejudice may justify the dismissal of the proceedings."

126.   The decision in Flynn v. Minister for Justice [2017] IECA 178 is another judgment along these lines. Here the plaintiff claimed that he had been assaulted in 2002 by members of An Garda Síochána, but at the time of the application for a strike-out order in 2015 the action was still in enmeshed in discovery issues. Irvine J. characterised the claim as a straight-one in respect of which little by way of excuse had been offered in respect of the delay beyond 2008 She held that this was another moderate prejudice case and concluded that the balance of justice required the dismissal of the action.

127.   I have already commented on Millerick. But one can, I think, apply the same comments to aspects of the reasoning in Flynn. Here the delays were, however, far longer than in Millerick and there were clearly reputational issues for members of An Garda Síochána, factors of which Irvine J. was keenly aware. On re-visiting the reasoning in Flynn – I was a member of the Court of Appeal who joined in the judgment of Irvine J. - I think that greater weight would now have to be given to the failure on the part of the defendants to bring the appropriate motion under Ord. 122, r. 11.

The case-law from 2018 onwards

128. It remains to consider some of the post-2018 case-law. Much of this is very helpfully summarised and analysed by Delany, "Dismissal of Proceedings on Grounds of Delay: Recent Developments" (2024) 42 Irish Law Times 6.

129.   In Mangan v. Dockeray [2020] IESC 67 the plaintiff had suffered profoundly debilitating injuries at birth in 1995. Dealing with the question of whether the action for professional negligence should be struck out, McKechnie J. observed that the mere length of time was not in itself enough:

"...|I acknowledge that the overall time period in this case, being some 25 years since the events complained of occurred, may seem stark on its face. However, as some of the most prominent authorities demonstrate, a lengthy frontline period in and of itself may not necessarily be fatal. A more detailed examination of the circumstances, such as excusability, prejudice and the like, including where justice falls, is always essential."

130.   In the end McKechnie J. concluded that the balance of justice did not favour the dismissal of the proceedings. As the plaintiff was of unsound mind, there was no limitation period, and it was crucially important that the plaintiff's case should be continued. No specific prejudice had been advanced, observing that it was also relevant that:

 "The availability of what appears to be full and complete records of the events at and surrounding birth and thereafter during the plaintiff's stay [at the defendant hospital]. The likelihood that, irrespective of the passage of time, the evidence of both the second and third named defendants and any experts called on their behalf, would be heavily if not almost entirely reliant on those medical reports."

131.   This jurisdiction has also been extensively examined at the Court of Appeal level. Two judgments from 2022 must serve as representative for present purposes.

132.    In the first of these, Gibbons v. N6 (Construction) Ltd. [2022] IECA 112, the plaintiff claimed that by reasons of the wrongful actions of the defendant construction company, parts of his property were subject to flooding following the construction of the M6 motorway in 2009. It was said while the flooding had commenced in November 2009, proceedings were only issued in March 2012. A statement of claim followed in February 2014, but thereafter the plaintiff was tardy in responding to the particulars. He was also tardy in facilitating inspection of the property by N6. There was also a litany of unanswered correspondence, only partially mitigated by the fact that the solicitors for N6 had apparently overlooked the fact that they had failed to serve a defence upon the plaintiff. N6 ultimately brought a dismissal motion in 2020.

133.   The judgment of Barniville J. is an impressive and thorough analysis of the case-law to date. He concluded that the delay had in fact been inordinate and inexcusable. He noted that N6's solicitors had persistently and frequently sought to have the case progressed, but these efforts were largely unavailable due to the various delays on the part of the plaintiff. He also concluded that the balance of justice favoured dismissal. While acknowledging that the case probably did not come within the exceptional O'Domhnaill v. Merrick category of cases, N6 could nonetheless point to other prejudicial factors arising from the fact that "it has to continue in existence solely by reason of the continued existence of the proceedings, the progression of which has been so seriously delayed by the inaction on the plaintiff's side."

134.   The other decision is that of Collins J. in Cave Projects Ltd. v. Gilhooley [2022] IECA 245. In that case a bank had issued summary proceedings for debt in 2011 arising from the terms of loan which had become repayable in 2008. Cave had acquired the loans in 2013. The proceedings were ultimately adjourned for plenary hearing in January 2015, but by 2019 the proceedings had not come to trial. One of the remaining defendants then issued a motion to strike out on grounds of undue delay. That application was refused by Meenan J. in the High Court and that decision was upheld by the Court of Appeal on somewhat different grounds.

135.   This case was unusual in that the period of inordinate delay identified by Collins J. - some two years - was very much at the lower end of the spectrum. Collins J. also concluded that some six months of the delay could be excused. Collins J. also felt that the defendant had contributed or acquiesced in the delay by, for example, his delay in raising key defences and his failure to reply to notices for particulars.

136.   So far as the balance of justice was concerned, Collins J. pointed to the fact that the inordinate delay had been limited; that there was no evidence of material prejudice to the defendants; that the defendant had in fact admitted receiving at least some of the disputed monies and, moreover, that the case was already listed for hearing in the following month. Collins J. also counselled against an "over-correction" of judicial attitudes towards the question of delay.  As he put it (at paragraph 37):

"It is entirely appropriate that the culture of "endless indulgence" of delay on the part of plaintiffs has passed, with there now being far greater emphasis on the need for the appropriate management and expeditious determination of civil litigation. Article 6 ECHR has played a significant role in this context. But there is also a significant risk of over-correction. The dismissal of a claim is, and should be seen as, an option of last resort. If the Primor test is hollowed out, or applied in an overly mechanistic or tick-a-box manner, proceedings may be dismissed too readily, potentially depriving plaintiffs of the opportunity to pursue legitimate claims and allowing defendants to escape liability that is properly theirs. Defendants will be incentivised to bring unmeritorious applications, further burdening court resources and delaying, rather than expediting, the administration of civil justice. All of this suggests that courts must be astute to ensure that proceedings are not dismissed 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."

Part VII - Does the Court possess an inherent jurisdiction to strike out  for want of prosecution?

137.   Perhaps the first issue to be considered by the Court before considering the implications of this case-law is the basic question of whether the courts possess an inherent jurisdiction to strike out proceedings on the grounds of want of prosecution. This power was asserted by Hamilton CJ in Primor, saying that the courts "have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so": see [1996] 2 IR 459 at 475.  As it happens, this Court had previously asserted an inherent jurisdiction to strike out proceedings for want of prosecution before this Court even in the absence of a provision of the Rules of the Superior Courts to this effect: see Dhand v. McCrabbe (1962) 96 ILTR 196 at 197 per Ó Dálaigh C.J. Likewise Lavery J. stated in Keaveny v. Geraghty [1965] IR 551 at 560 that:

"Independently of the Rules, the Court has an inherent jurisdiction to strike out a pleading. to stay proceedings or to dismiss an action on the grounds that no cause of action is shown, that the proceedings are frivolous or vexatious or are an abuse of the process of the Court."

138.   In none of these cases were the theoretical underpinnings of this asserted inherent jurisdiction actually explored. Nevertheless, virtually all the case-law from O'Dowd, through O'Domhnaill and on to Primor (and beyond) assumes the existence of an inherent jurisdiction to strike out delayed claims. It seems appropriate to reconsider whether there is in fact such a jurisdiction.

139.   It is true that as this Court observed in Mavior v. Zerko Ltd. [2013] IESC 15, [2013] 3 IR 268, "if, in a constitutionally permissible way, the Oireachtas have defined the limits of a particular jurisdiction then it is not for the courts to extend those limits by invoking a vague 'inherent jurisdiction'": [2013] 3 IR 268 at 275, per Clarke J.  In the present case, however, I do not think that the Superior Court Rules Committee can be said to have defined or exhausted the extent of the relevant jurisdiction to strike out for want of prosecution by providing for Ord. 122, r. 11 such that any question of inherent jurisdiction is thereby excluded. This is rather a case where (to adapt Clarke J.'s words very slightly) "the scope of a particular jurisdiction is regulated in part by the Rules and in part by case law..."  In passing it may be noted that in Northern Ireland it has been accepted that the inherent jurisdiction to dismiss for want of prosecution still survives, the existence of a rule similar to Ord. 122, r. 11 notwithstanding: see, for example,  Braithwaite & Sons v. Anly Maritime Agencies Ltd. [1990] NI 63 at 69, per Carswell J. and Flynn v. Department of the Environment [2006] NIQB 103, per Higgins J.

140.   It is unnecessary to define the scope of inherent jurisdiction, but it may be said that a court "invokes its inherent power in order to fulfill its constitutionally-ordained function as a court of law and to accomplish the administration of justice in a regular, orderly and effective manner": see Donnelly, "Inherent Jurisdiction and Inherent Powers of the Irish Courts" (2009) 2 Judicial Studies Institute Journal 122, 126-127. This is a jurisdiction which a court "possesses implicitly whether owing to the very nature of the judicial function or its constitutional role in the administration of justice" (GMcG v. DW (Joinder of Attorney General) [2000] 4 IR 1 at 26, per Murray J. ) or "from the nature of the court's judicial function or the court's constitutional role in the administration of justice" (Mavior v. Zerko Ltd. [2013] 3 IR 268 at 276, per Clarke J.).

141.   If one surveyed the jurisprudence of this Court over the last 100 years or so one could find a broad miscellany of cases and heterogenous instances of where the inherent jurisdiction was invoked where this was considered necessary to fulfill the Court's constitutional task of administering justice. We have already seen how in Dhand v. McCrabbe (1962) 96 ILTR 196 this Court identified an inherent jurisdiction to strike out a delayed appeal for want of prosecution even if no explicit provision was made for the exercise of such a power in the Rules of the Superior Courts. Another example is supplied by the judgment of FitzGibbon J. in In re Bannon [1934] IR 490 at 496 where he held that this Court possessed an inherent jurisdiction to stay the execution of a judgment. In Dolan v. Corn Exchange (No.2) [1975] IR 315 at 329 Henchy J. spoke of a court's inherent jurisdiction "within the rules of evidence and without unfairly affecting the rights of any party, to take such steps as he considers necessary to ensure that the issues will be decided according to the true facts and the correct version of the law."

142.   This exercise of an inherent jurisdiction was also discussed in this Court's judgment in O. v. M. [1977] IR 33. This was a case where s. 19 of the Courts Act 1971 envisaged that the High Court was to have a new jurisdiction under the Illegitimate Children (Affiliation Orders) Act 1930. Section 19(b) of the 1971 Act provided that "Rules of Court shall provide for the conduct of proceedings in the High Court under the said Act in a summary manner." No rules of court had been made, but Henchy J. held (at 39) that the High Court should nonetheless be held "to have a general or inherent jurisdiction to operate s. 19 of the Act of 1971" provided that the procedures were as close as may be to those which had been operated by the District Court up to that point. Kenny J. took a similar view, saying (at 41): "The jurisdiction of the High Court created by the Constitution is not dependent upon rules of court: when that Court was given 'full original jurisdiction...in all matters and questions" by Article 34.3 of the Constitution, the people intended it to be exercised and did not intend it to be conditional upon the action or inaction of a subordinate body."

143.   Another example may be found in Holohan v. Donohoe [1986] IR 45 where this Court held that it possessed an inherent jurisdiction to assess the level of damages payable to a plaintiff where it considered that the amount awarded by a jury in the High Court had been excessive. Likewise, in Irish Commercial Society Ltd. v. Plunkett (No.1) [1987] ILRM 504; [1986] IR 258 this Court held that the High Court had an inherent equitable jurisdiction to release a party from an interlocutory consent order where that a consent was given under a misapprehension as to the true state of affairs and where the relevant facts came to light later. And in The State (Hughes) v. O'Hanrahan [1986] ILRM 218 at 221 McCarthy J. described the jurisdiction to set aside an order granted ex parte was part of the inherent jurisdiction of the court. In Doyle v. Hearne [1987] IR 601 at 607-8 Finlay C.J. said that "every court has an inherent jurisdiction in order to secure the due administration of justice to adjourn any part of the hearing of a case before it." In The People (Director of Public Prosecutions) v. Quilligan (No.2) [1989] IR 45 at 92 Walsh J. said that "within its appellate jurisdiction" the Supreme Court "has the inherent power to order a new trial."

144.   Of course, the best-known example of the application of the inherent jurisdiction is perhaps the judgment of Costello J. in Barry v. Buckley [1981] IR 306 where he held that the courts possessed an inherent jurisdiction to strike out an action which was doomed to fail even the case otherwise did not come with the former version of Ord. 19, r. 28. (This was before the provisions of Ord. 19, r. 28 were comprehensively revised and re-stated by the amendments effected by Rules of the Superior Courts (Order 19) 2023 (S.I. No. 456 of 2023)).

145.   While all these examples are heterogeneous in nature, they may all nevertheless be said to indicate the existence of a general inherent jurisdiction where this is necessary to make the administration of justice effective or to conserve and protect it against possible abuse. This is relevant to the general question of whether there is an inherent jurisdiction to strike out for undue delay. As I have indicated elsewhere in this judgment, the jurisdiction to strike out on grounds of delay serves the courts' fundamental duty to preserve and conserve the administration of justice with which they have been vested by Article 34.1. Part of that duty is to protect the process of the courts from abuse. As O'Higgins C.J. observed in The State (Director of Public Prosecutions) v. Walsh [1981] IR 412 at 426 in the admittedly different context of contempt of court:

 "...under the Constitution it is the solemn duty of judges to see that justice is administered in the Courts. Surely the imposition of this duty carries with it both the power and the corresponding duty to act in protection of justice, if its fair or effective administration is endangered or threatened. In my view, the judicial power of government...is sufficiently extensive to authorise the Courts to take any action that is necessary for the due administration of justice." (Emphasis supplied)

146.   Adopting these words of O'Higgins C.J. it can be said that long delays in the course of litigation endanger the "fair or effective administration of justice." As I pointed out in Donnellan v. Westport Textiles, it is necessarily implicit in Article 34.1 that the courts have also a duty to ensure that the administration of justice operates in an efficient and effective manner. This in turns means that they must be necessarily clothed with powers designed to make that jurisdiction effective and to protect the administration of justice against abuse.

147.   All of this means that the High Court must have - and does have - an inherent jurisdiction to strike out proceedings on the grounds of gross and excessive delay. One might add in passing that the Oireachtas has recognised the existence of this jurisdiction inasmuch as s. 3 of the Statute of Limitation (Amendment) Act 2000 provides that nothing in the extended limitation provisions contained in that Act  "shall be construed as affecting any power of a court to dismiss an action on the ground of there being such delay between the accrual of the cause of action and the bringing of the action as, in the interests of justice, would warrant its dismissal." It is true that the 2000 Act is directed to cases of sexual abuse and the exercise of the exceptional O'Domhnaill v. Merrick-style jurisdiction. One might likewise say that it does not in terms authorise the exercise of this strike out power, even in that area.  Yet it does so tacitly in the context of an important jurisdiction and in a sensitive area which has generated a good deal of this case-law.

148.   I should say again at this point that I have had the opportunity of reading the judgment in advance the judgment which Murray J. is about to about to deliver. In that judgment Murray J. has provided an impressive critique of the inherent jurisdiction jurisprudence. While recognising the force of these criticisms, I consider that the existence of the inherent jurisdiction is by now such an embedded feature of our legal system in a variety of areas that it is now too late to disturb it. As I have noted, this very practical jurisdiction ultimately serves the constitutional goal of conserving and protecting the fair administration of justice envisaged by Article 34.1. Whatever the possible theoretical shortcomings, I do not think that this jurisdiction realistically can or should be uprooted in the course of a single case.

149.   Accordingly, for all of these reasons, I consider that the High Court does possess an inherent jurisdiction to strike out proceedings on the ground of undue delay. I now propose to return to the pre- and post-Primor case-law to see what, if any, lessons can be drawn following the lengthy - but necessarily incomplete - review of the case-law on undue delay, which I have taken the liberty of conducting earlier in this judgment.

Part VIII - What are the general principles to be drawn

from the Primor case-law?

150.   Perhaps the first thing to observe is that the case-law on delay provides another example of the wisdom of Tolstoy's famous dictum from the opening lines of Anna Karenina regarding happy and unhappy families: each case in which there has been prolonged delay may be said to present unhappy features in its own way. While there is a range of common issues - ranging from professional negligence; the complexity of the case; a general lack of resources; a lack of awareness of legal rights or the importance of moving with expedition; inefficiency; to just general indolence and lethargy - there is nearly always one special feature peculiar to that case which has contributed to the delay. To that extent it is simply a truism to say that none of these cases are quite alike. This means in turn that the role of precedent is, perhaps, to some degree diminished in this area and that it is not always easy to draw upon principles of general application: see here the comments to this effect of Geoghegan J. in McBrearty (at page 36) and those of Collins J. in Cave Projects (at paragraph 36). Even when one can, the application of these principles does not always easily lend itself to objective application and with this wealth of the case-law, it is perhaps an understatement to say that not all of it can be said to be perfectly consistent.

151.   So, one may then ask, what general principles can be derived from this case-law? It is clear from this (necessarily compressed) review that there are indeed really two separate streams to the strike-out jurisprudence. One is constitutionally derived from the inherent Article 34 powers. This jurisdiction is closely linked to the value of a fair hearing and the capacity of the court to administer justice after a lapse of time where memories have dimmed and where key witnesses and documentary records may no longer be available. This jurisdiction is an exceptional one, designed to protect defendants from unfairness and to safeguard the integrity of the administration of justice.

152.   The mainstream of jurisprudence derives, however, from the Primor principles themselves and its three-prong test. For my part, however, I consider that the very abundance and proliferation of this case-law itself provides empirical proof that Primor is not working well in its present form and that the three-prong test needs to be significantly adjusted.  One must, of course, immediately acknowledge that no test can be entirely mechanical or avoid the fact that some judges will evaluate these matters differently, particularly in marginal cases. The key objective must, however, be to reduce the degree of uncertainty in most cases and to allow them to be disposed of more efficiently. That will still leave contestable cases at the margins but that is perhaps an unavoidable feature of litigation.

153.   While the Primor test was a significant advance in its own time, and was then understood as being more demanding of plaintiffs, and to be less indulgent of delay, experience has shown the contrary. It has proved in its operation to be both unduly lenient, and, more importantly, that its inherent flexibility has meant that the law is not predictable, leading in turn to lengthy applications in the High Court, and almost inevitable appeals, all making fine judgments on cases. The result is often to create further delay in the prosecution of a claim rather than to advance proceedings.

154.    This all leads to the unavoidable conclusion that the present law in relation to dismissal for want of prosecution is unsatisfactory since it contains at least three different strands. First, Ord. 122, r. 11 allows for the dismissal for want of prosecution if no step in the proceedings has been taken for at least two years. Second, the Primor jurisdiction deriving, it is said, from the inherent jurisdiction of the Court to control its own processes permits the dismissal of the proceedings for want of prosecution for "inordinate and inexcusable delay. Third, the jurisdiction identified in O'Domhnaill v Merrick [1984] IR 151 and Toal v Duignan (No.1) [1991] ILRM 135 and Toal v. Duignan (No. 2) [1991] ILRM 140), under which the Court exercises a jurisdiction to dismiss proceedings simply by reason of the length of time since the original incident, and without any necessary culpability on the part of the plaintiff. This third strand is almost entirely referable to the extended limitation period cases but its existence and, in particular, the fact that it means that a claim which has been commenced within the limitation period and which also has been diligently pursued can be dismissed makes it significant.

155.   As I have already indicated elsewhere in this judgment, it is desirable that the law on dismissal for want of prosecution should be addressed by amendments to the Rules of the Superior Courts. That would have the advantage not only of the clear promulgation of rules of prospective application, but also that the drafting of the particular rules takes place with the benefit of input from all relevant parties.

156.   In its current form, however, Ord. 122, r. 11 is ineffective as the principal tool under which proceedings can be struck out or dismissed for want of prosecution. This is because it is focussed upon steps in the proceedings (of which there are only a limited number), and which are not perfectly aligned with progress in a case. Therefore, a claim which may involve considerable research and preparation may be at risk of being dismissed for want of prosecution whereas a case in which a party has done no more than serve a single procedural document within a two year period is nevertheless insulated from the possibility of dismissal. A comprehensive rule on dismissal of claims for want of prosecution would necessarily reduce reliance on the Primor approach and resort to the inherent jurisdiction, and either remove it entirely or reduce it to a residual status. The O'Domhnaill v Merrick and Toal v Duignan jurisprudence would remain in such circumstances but it would, of necessity, have limited practical importance. But until such a comprehensive review of the Rules takes place some version of Primor is going to be the main source of dismissal jurisprudence.

157.   Since Primor is deduced from the inherent jurisdiction of courts in the control of their own affairs, it is peculiarly appropriate for adjustment by this Court. The real problem is that, as I have already stated, this Court in Primor did not make sufficient use of Ord. 122, r. 11 as an objective yardstick by which to measure what constituted inordinate and inexcusable delay. A further problem is that the operation of the balance of justice test unmoored from this two-year default period has proved difficult to apply in an objective and consistent fashion. This is because the balance of justice considerations are in themselves heavily fact dependent and quite often perfectly legitimate views may differ on the outcome of this test in any given case.  As Cox has put it ("Dismissal of an Action on the Grounds of Delay or Want of Prosecution: Recent Developments" (2012) 35 Dublin University Law Journal 121 at 146):

 "...in reality, the Primor test is simply a way of permitting judges an open-ended discretion enabling them to provide a just answer (which focuses on the rights of the parties and the broader public interest) to the question of whether to strike out an action for delay or want of prosecution..."

 

Part IX - Does this Court possess a jurisdiction to review and revise Primor and, if so, should it do so?

158.   This brings us to a key jurisprudential question. Does the Court possess a jurisdiction to review and revise Primor and, if so, should it do so? The leading authority on the doctrine of precedent remains that of Mogul of Ireland Ltd. v Tipperary NR County Council [1976] IR 260. Here the question was whether the phrase "such injury or damage" in s. 135 of the Grand Jury (Ireland) Act 1836 extended to direct loss only. The plaintiffs in this case were a mining company who had suffered loss as a result of the deliberate detonation of explosives at its premises by an assembly of armed intruders. If consequential loss was recoverable by virtue of this provision, then the plaintiffs stood to obtain an award of some £220,000. If, on the other hand, the Supreme Court were to follow its earlier decision in Smith v Cavan and Monaghan County Councils [1949] IR 322 then the plaintiffs could only recover for direct loss, which in this case came to £29,000.

159.     This Court refused, however, to take the opportunity to overrule the previous decision in Smith. While Henchy J. agreed that if the matter were res integra there might be much to be said for the proposition that the statutory reference to "such injury or damage" should not be confined to direct loss. Henchy J. insisted, however, that it was generally necessary to go further in a case of this kind and demonstrate that the earlier judgment was clearly wrong ([1976] IR 260 at 273):

"We are concerned here with a question of pure statutory interpretation which was fully argued and answered in Smith's case after mature consideration. There are no new factors, no shifts in the underlying considerations, no suggestion that the decision has produced untoward results not within the range of the court's foresight. In short, all that has been suggested to justify a rejection of the decision is that it was wrong. Before such a volte-face could be justified it would first have to be shown that it was clearly wrong. Otherwise the decision to overrule it might itself become liable to be overruled."

160.     It is true that Primor itself is something of a "super-precedent" in that it is a core decision which remains embedded in our system of civil justice. It has, furthermore, been frequently endorsed in the meantime by a long series of decisions of this Court. The revision of a "super precedent" of this status is accordingly not one which could or should readily be contemplated by this Court. Yet even within the rubric of Mogul there are, I suggest, compelling reasons to suggest Court would nonetheless be justified in revising Primor.  These reasons may be summarised as follows.

161.     First, unlike Mogul, the present case does not concern issues of statutory interpretation. A key principle of Mogul is that if an earlier judicial decision interpreting a particular statutory provision proves problematic, this is a matter which is generally best addressed by the Oireachtas. By contrast, this issue concerns the operation of an inherent jurisdiction assumed by the courts in aid of their constitutional duty to conserve and guard the application of the administration of justice as envisaged by Article 34.1. This is principally an issue for the courts themselves in the operation of their day-to-day business.

162.     Second, there are in the words of Henchy J. in Mogul, "new factors" and "shifts in the underlying considerations" since Primor was first delivered. In the interim there has been an increased judicial awareness of the court's role as guardians of the entire Article 34 process. The courts now have a greater understanding of the corrosive impact of delays in the legal system for the reputation of that system and in respect of its impact on the parties themselves. Order 27 RSC has been amended on a number of occasions so that the rules of court dealing with default of pleading have been tightened up, yet the efficacy of this change could be undermined if the courts otherwise remained too tolerant of delays at later stages in the legal process. The limitation period in respect of a core part of the courts' business - personal injuries claims - has furthermore been reduced to two years by s. 7 of the Civil Liability and Courts Act 2004.

163.     There have also been a series of landmark decisions of the European Court of Human Rights - such as McFarlane v. Ireland [2010] ECHR 1272 and Keaney – involving Ireland and the application of Article 6(1) ECHR. And quite independently of the sub-constitutional transposition of the ECHR into domestic law by the European Convention of Human Rights Act 2003, s. 11(1) of the newly enacted Court Proceedings (Delays) Act 2024 provides that every litigant "has the right to the conclusion of those proceedings within a reasonable time." While this provision is not yet in force, it may nonetheless be said to give practical effect at statutory level within the scope of domestic law to the values necessarily implicit in Article 34.1 and to the precise wording of Article 6(1) ECHR itself.

164.     Third, it may be said that in the language of Henchy J. in Mogul, Primor has also "produced untoward results [which were] not within the range of the court's foresight."  When Primor was decided in 1995 strike out applications for delay were not as common as they have since become. The Court did not then foresee that applications of this kind would become as frequent as they have in fact become in the interval of the last thirty years nor that such applications could consume such considerable amounts of judicial time or produce a plethora of sometimes confusing and conflicting judgments.

165.     Fourth, in any event, it can be said that at least aspects of Primor are clearly wrong. The obvious point here is that the Court failed to pay sufficient heed to the importance of Ord. 122, r. 11 in the context of what constituted inordinate delay. This term was helpfully described by Cooke J. in Framus Ltd. v. CRH Ltd. [2012] IEHC 316 as connoting delay which is "irregular, outside normal limits, immoderate or excessive."

166. To my mind, the measure of inordinate delay is principally to be found in the language of Ord. 122, r.11 itself. This provides, as we have seen, that whereas there has been no proceeding for two years the other party may apply to court to dismiss the proceedings for want of prosecution. As I have already indicated at the start of this judgment, one cannot avoid thinking that this rule has received insufficient attention in the case-law to date. Certainly, it is this two-year period which should be the principal yardstick of delay. This time period is not ungenerous and, critically, is the one stipulated by the Rules of the Superior Courts. One can fairly say that, adopting the felicitous language of Cooke J. in Framus, a delay of more than two years in taking a step in an action is well outside normal limits and is immoderate and excessive.

167.     While any adjustment of Primor and the wealth of case-law in the meantime is not a step which this Court should lightly take, I am nonetheless convinced that at least a significant adjustment is nonetheless necessary. One might also note that in the past this Court did not hesitate to reverse other important decisions which were shown either to have been either doctrinally unsound (see, e.g., our decision in The People (Director of Public Prosecutions) v, Conroy [1986] IR 460) or where they had been overtaken by other judicial developments (see, e.g., our decision in McNamara v. Electricity Supply Board [1975] IR 1).

168.     In these circumstances, I consider that this Court can and should take the step of adjusting Primor to present circumstances so that as so adjusted these principles can work more effectively There are in particular four specific features of Primor that call for significant adjustment.

169.     First, the issue of delay should be measured in the first instance by reference the two-year period of inactivity contemplated by Ord. 122, r. 11. This is a positive legal provision which impliedly identifies a period of two years without any proceedings/activity as being in itself sufficient to permit an application to be brought to dismiss for want of prosecution. Second, where there has been a delay of two years or more on the part of a plaintiff, this is delay which in itself will often justify the dismissal of the action at that point absent good reason or excuse, particularly where a  defendant has actively sought - whether by correspondence in the first instance or thereafter by motion - to press a tardy plaintiff into progressing the case In addition to the jurisdiction to dismiss the action, the Court is, however, also expressly empowered by Ord. 122, r. 11 "to make such order and on such terms as to the Court may seem just." The period of inactivity of two years would in principle allow a defendant to seek (and, if necessary, obtain) an order dismissing the proceedings for want of prosecution, thereby shifting to the plaintiff the onus of demonstrating the case that the order should not be made whether by reference to the detail of the case, any excuse to be offered by the plaintiff, and (where appropriate) the conduct of the defendant.

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

171.      This reflects a number of different insights: the first is that cases tend to deteriorate the further they are from the events giving rise to them. Second, it recognises the fact that even if a claim is good, a plaintiff (and/or his legal advisers) have an obligation to ensure that the administration of justice is carried out effectively and efficiently, and the courts system has a corresponding interest in ensuring that all cases are advanced efficiently, and that endless indulgence is inimical to the proper functioning of the court system.

172.     In practical terms this is a significant shift from Primor. Under that approach there was never much room for disputing what constituted inordinate delay and most delay that was inordinate was in practice deemed to be inexcusable. The real work was done by the balance of justice criterion (i.e., the third limb of Primor) which dragged the courts into a detailed consideration of the claim and the likelihood of it being heard and determined in a reasonable time, and probably involved some assessment of the merits. The result was the expenditure of almost as much time and effort as the case proper and certainly consumed a great deal of judicial time both in the High Court and on any appeal to the Court of Appeal or to this Court. If judgments were detailed - as they invariably had to be - then that could delay things further. The shift in the test suggested above and elaborated on later has the effect of making the delay aspect do more of the work, and that will be done simply by looking at the time what has elapsed. If the period of inactivity is over two  years then the focus shifts to the plaintiff to avoid a dismissal. On this aspect of the case the factors previously identified in the Primor jurisprudence may come into play, but perhaps in a more structured way.

173.     It is accordingly important  that it is clearly understood that it may be sufficient in some cases to bring an application when there has been inactivity, and that as I have just indicated it may not be necessary to show anything more than the lapse of time involved. This will be sufficient in some cases for a court to dismiss a claim. Factors such as reasonable excuse on the part of the plaintiff, culpability on the part of the defendant in taking steps in the proceedings themselves, absence of prejudice to the defendant, may all be relied on by the plaintiff to seek to persuade the court not to dismiss the claim. Conversely, factors such as prejudice to the defendant and active demands of a plaintiff by correspondence and, if necessary, by motion that the action be progressed will  naturally strengthen a defendant's claim. It follows that the longer the lapse of time the more compelling such factors would require to be to persuade a court not to dismiss the claim. Save, perhaps, in those cases where the delay has been manifestly contumelious and inordinate such that material and significant prejudice has been established or may readily be inferred, one may expect that in many instances where the High Court is initially seized of an Ord. 122, r. 11 motion shortly after the initial two year period has expired it will initially adopt the case under active case management and resort in the first instance at least to the making of "unless" orders imposing strict time limits on defaulting litigants. One must naturally recall that the striking out of proceedings on these grounds represents a dismissal of the proceedings without a hearing on the merits. This is a step which any court will naturally take only with reluctance.  One might therefore say that the expiry of the two-year period which triggers the application of Ord. 122, r. 11 creates a presumption in favour of dismissal of the action, but that such presumption may be displaced.

174.          Third, once that two-year period specified in Ord. 122, r. 11 has expired, then claims by defendants that they are suffering prejudice to their professional reputations by reason of delay will count for little unless these defendants can show that they themselves have invoked the remedies provided to them by the Rules of the Superior Courts in a timely fashion.

 

Part X - How would the modified Primor test operate?

175.          How, then, would the modified Primor test operate? It would mean in effect that any period of inactivity by a litigant beyond two years would be deemed to be inordinate and would be regarded as prima facie inexcusable, thus collapsing the three-prong test into a two-part test. It would mean that the Court would henceforth treat a two-year delay with no further step in the proceedings (or, I would add, inactivity in the litigation) as in itself warranting the dismissal of the proceedings unless there were good reasons which justified the court staying its hand.

176.     While it is important to place renewed focus on this rule so that it remains the starting point for all future applications of this kind, it bears observing that the rule is nonetheless silent as to when an action should be dismissed and the considerations which should weigh with the court when considering whether a particular action should be struck out. I do not here mean to suggest that proceedings can never be struck out for delay unless two years without any proceeding have elapsed. There might well be, for example, instances of where a litigant had effectively manipulated the two-year rule by the strategic filing of a proceeding just as a particular two-year period was about to end.  There also examples of where the courts have struck out proceedings pursuant to the inherent jurisdiction of the court where there has been a flurry of activity by a plaintiff after the two-year period expired but before the defendant could issue the requisite strike out motion: see, e.g, Collins v. Bus Átha Cliath [1999] IESC 69. Other special and exceptional examples may well present themselves as well in future cases. In general, however, the question of inordinate delay should be measured against the time period stipulated by Ord. 122, r. 11.  

177.     There are of course also categories of special cases - ranging from planning to child care - where urgency is clearly called for. In such circumstances even relatively short periods of delay designed to frustrate the effective of operation of the administration of justice might amount to an abuse: see, e.g., Cavern Systems Ltd. v. Clontarf Residents Association [1984] ILRM 24.

178.      These special cases aside, the litigant who contends that the delay was excusable carries this particular burden of proof of showing that the action should not be dismissed after a two-year period of inactivity without any step in the proceedings. After all, any such justification for the delay - such as the status of the plaintiff as a minor, serious illness, lack of resources, tracing missing witnesses, acquiescence of the defendant, the fact that the parties had sought to mediate the claim and the like - will generally be within the peculiar knowledge of the party so contending. Nor does the two-year rule mean that the High Court should automatically strike out the proceedings even after a two-year delay: as I have already indicated, it may be that the Court might consider that the case could be quickly brought on for hearing with the benefit of active case management such that a strike out at that point might be unnecessary or disproportionate. I repeat, however, that two years of inactivity is the inflection point so far as undue delay is concerned.

179.     If one then seeks to apply these tests to the present case, it cannot be said that this is a case which falls within the first category of Ó Domhnaill v. Merrick-type cases which remains an exceptional jurisdiction. The delay in question - some eighteen years - is admittedly unacceptable. This, however, does not mean that it falls within the first category of cases to which the exceptional jurisdiction applied. The nature of the transaction and the issues arising from it can be examined by reference to the documentary records surrounding these dealings in 2005 and 2006. It is true that the critical witness for the defendants - Ms. Connors - has long since retired and during this period she has also suffered some bouts of ill-health. The Court was nonetheless informed at the first hearing of this appeal that Ms. Connors has happily recovered and that there is no question of this illness having impaired her memory.

180.     There is no doubt but that this delay is to some extent prejudicial, since the ability of any witnesses to recall the nuances and details of this transaction has probably diminished to some degree overtime. The fact that she is long retired and lacks immediate familiarity with the intricacies of conveyancing practice probably also contributes to this prejudice. Yet I cannot say that this delay is inherently prejudicial such that the prospect of a fair trial has been indelibly compromised. To that extent I find myself in respectful disagreement with the comments of Meenan J. in the High Court (at paragraph 23) and Power J. in the Court of Appeal (at paragraph 123) insofar as both suggested that this delay had, in the former's words, created "significant prejudice resulting in a significant risk of an unfair trial."  While I do not pretend that the delay has been anything but unsatisfactory, taking matters in the round I nonetheless cannot say that the delay has been of such an egregious nature that it has in fact compromised the ability to have a fair trial.

181.     Turning now to an application of what I might term the adjusted Primor principles, I do not think that there can be any real doubt but that these delays have been inordinate measured by reference to Ord. 122, r. 11. Even if it were to be accepted in the plaintiff's favour that notices for particulars were served by him on both defendants in January 2014 and that such were not responded to, the fact remains that there was no "proceeding" within the meaning of Ord. 122, r.11 for a two-year period after January 2016.  As it happens the next "proceeding" was not to take place until August 2018 when the Buttle defendants brought a motion seeking to have the proceedings dismissed and even then, the decision of this Court in McMullen v. Farrell (No.2) makes it clear that such a motion is not, strictly, a "proceeding" for the purposes of the rule. Measured by reference to the time period contained in Ord. 122, r.11, this inactivity on the part of the plaintiff for this prolonged length of time must be regarded as inordinate.

182.     In addition, both defendants have pleaded that the 2013 claim is statute-barred. Yet even if these proceedings are not so statute-barred - and I will make this assumption in the plaintiff's favour for the purposes of this appeal - it is plain that, on any view, there was a late start on the part of the plaintiff.  It is clear from cases such as Hogan v. Jones [1994] 1 ILRM 512 and Stephens v. Paul Flynn Ltd. [2008] IESC 4, [2008] 4 IR 31 that in these circumstances there is a particular obligation on a plaintiff to pursue a case with expedition. As Lord Diplock famously stated in Birkett v. James [1978] AC 297 at 322 "a late start makes it the more incumbent upon a plaintiff to proceed with all due speed..."

183.     If this were not enough, one must also note that these proceedings were launched against the background of where Filbeck had already obtained judgment against the plaintiff and where the plaintiff was then seeking to have this judgment set aside.  It is not really in dispute but that the purpose and effect of the adjournment of the High Court proceedings on 5th December 2013 was to facilitate the plaintiff in litigating to a conclusion all the issues which he had raised in his plenary action against these defendants. This included the legitimacy of any cross-claims which had been brought against him by either Mr. Buttle and/or Filbeck arising from the events of 2005-2006. All of these considerations re-inforce the conclusion that the delay here has been inordinate.

184.     Subject to two issues which I will next address, no real explanation or excuse has been tendered by the plaintiff for this delay beyond December 2013. On that occasion the plaintiff had been afforded one final opportunity to raise every issue he wished in relation to the events of 2005 and 2006 and, moreover, the practical effect of this adjournment was that he had obtained a stay on the enforcement of any Filbeck judgment. He had, so to speak, narrowly managed to escape the judicial guillotine and it was then incumbent on him to have made the best of this good fortune by prosecuting his claim with the utmost vigour.

185.     This he did not do. By way of explanation Mr. Kirwan says first that he had served a notice for particulars on both sets of defendants on 10th January 2014 and that he was awaiting a response from those defendants. It should be stated that the defendants have sworn affidavits to the effect that they did not receive these notices and that they were each only served upon them in November 2018. The plaintiff cannot point to any record of the service of such a notice for particulars and the claim that there was such a service of a notice for particulars rests entirely on his own assertion to this effect.

186.      It is not, in any event, necessary to arrive at a concluded view as to which of the parties are correct on this point. Even if the plaintiff is correct, I agree with Meenan J. and the Court of Appeal that this does not in any material respect explain or excuse his inactivity for a period of over four years between early 2014 and the middle to late 2018. If there had been any default of pleadings - such as the failure to reply to the notice for particulars  – on the part of the defendants, Mr. Kirwan did not follow up on this default during this period.

187.     Mr. Kirwan also says that he was to some extent placed at a disadvantage during this period by reasons of the absence of the original solicitor's file. A copy of the file had, however, already been sent to his then nominated solicitor in 2010 and the full version of the file was supplied in 2017. Even if - as the plaintiff claimed - the copy supplied in 2010 was not the full file, he has not pointed to the existence of documentation, the absence of which at that time would have hampered his prosecution of the claim. Like Meenan J. and the Court of Appeal, I would reject this explanation in respect of the delay in prosecuting the 2013 proceedings.

188.     On any view, therefore, the plaintiff's delay in prosecuting the present claim with expedition after December 2013 until the proceedings were re-activated was inordinate. Under the adjusted Primor test such delay would presumptively invite the dismissal of the proceedings in the absence of an appropriate justification or excuse.

189.     I do not overlook the fact that the plaintiff was not professionally represented for much of this period and that he has certain personal medical issues. (It is only fair to record that his professional interests were, however, exceptionally well served by the solicitors and counsel assigned by this Court under the Court's access scheme following the grant of leave to this Court pursuant to Article 34.5.3⁰). The plaintiff is nonetheless an experienced businessman, and he is someone who is not unfamiliar with the nature of litigation. In that respect he cannot fairly be compared with, for example, the severely disabled plaintiffs in cases such as McBrearty and Mangan or the plaintiff coming from a severely socially and economically disadvantaged background as in Guerin v. Guerin [1992] 2 IR 287.

Part XII - The conduct of the defence

190.      In general it may be said that defendants are not obliged to take proactive action when faced with litigation delays which are not of their making. As Fennelly J.  said in Anglo-Irish Beef Producers ([2003] 3 IR 510 at 510) in the case of defendants the courts will distinguish between "any culpable delay in taking any steps in the action and mere failure to apply to have the plaintiffs' claim dismissed."  Different considerations naturally apply where the defendants have been guilty of acquiescence or have actively lulled the plaintiff into a false sense of security.

191.     Subject to those possible qualifications, a defendant who is not otherwise in default cannot be faulted for failing to apply to have the action dismissed. As Butler J. observed in Campbell v. Geraghty [2022] IEHC 241, such defendants may prefer to take their chances in the hope or even expectation that the action will quietly die.  Where, on the other hand, a defendant takes active steps to have the action of a lethargic or defaulting plaintiff speedily progressed - by e.g., pressing their opponent by means of  warning correspondence - then the more likely it will be that they will succeed in having the action struck out once the two year inflection point has passed.

192.     In the present case the solicitor defendants made much of the fact that delays in litigation of this kind impaired their good name and professional reputation. This is, as Collins J. observed in Cave Products (at paragraph 36), a form of prejudice which is not confined to "fair trial"-type prejudice. Noting the observations of Fennelly J. in Anglo-Irish Beef Producers ([2003] 3 IR 510 at 520) Collins J. stated that "the impact of unresolved litigation on a corporate defendant's financial accounts provides another example of how delay may produce concrete adverse impacts beyond any 'fair trial' prejudice." Another example along these lines is provided by the judgment of Noonan J. in McGuinness v. Wilkie and Flanagan [2020] IECA 111. Here there had been a long delay in prosecuting a very large professional negligence claim against a small firm of local solicitors. Noonan J. regarded the additional cost and the fact that the firm could not be expected to have professional indemnity cover for such a very large sum over a protracted period as an example of prejudice of this kind.

193.     It is true that, as Irvine J. observed in Collins, there are clearly cases where serious allegations of professional impropriety must be proceeded with dispatch, as it would be unfair to do otherwise. That was a case where the plaintiff made serious allegation of grave misconduct against a Garda doctor which had been allowed to lie fallow for a very long period of time. The judgment of Noonan J. in McGuinness is a further example along these lines, as in "over three decades in practice, the firm [of solicitors] has never had a professional negligence claim" and, moreover, "obviously in a small local community, a claim of this magnitude is bound to become widely known and potentially have a detrimental effect on the ongoing goodwill of the practice."

194.     While the issue of professional reputation is also a consideration in the present case, the most serious allegation - that of fraud - only entered the case in 2019 at an admittedly relatively late stage. As Ó Dálaigh C.J. observed in Dowd, the adage about sleeping dogs does little in the context of this particular argument to advance the cause of justice. Pleas of this kind from defendants concerning the impact of the delay on their professional reputations ring a little hollow where they could have done more to help themselves. For the future I suggest that the courts should give little weight to these considerations where (as here) the professional defendant who complains that proceedings impugning their professional reputation are hanging over their heads have not themselves taken the appropriate steps in a timely fashion to bring the action on for trial.  It is not too much to ask that such defendants would in the first instance correspond with defaulting or lethargic plaintiffs insisting that they take steps to progress the action.

195.      This very point was well made by McKechnie J. (at para. 36 of his judgment) in Comcast:

"Whilst I readily accept that what in truth is the plaintiffs' delay should not rest on the defendant's table, nonetheless it must be remembered that the constitutional guarantee of fair procedures and the right to a fair trial - both of which are invariably relied upon in motions to dismiss for either want of prosecution or in the interests of justice - are at the disposal of a defendant in a host of varying circumstances, and relatively speaking from a very early stage of the proceedings. See Ord. 27, r. 1, dealing with a failure to deliver a statement of claim, Ord. 36, r. 12, regarding the absence of a notice of trial, and Ord. 122, r. 11, permitting a dismiss application for want of prosecution... Those rules, coupled with many statutory provisions, as well as judicial precedent, are all designed to further, in an administrative, practical and operational sense, the defendant's rights, every bit as much as the plaintiff's rights. Murphy J. declares so in Hogan v. Jones [1994] 1 ILRM 512 at 520... 

"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 statute 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".

196.     In this respect the defendant solicitors in the present case were equally not without remedies. It is true that the provisions of the Rules of the Superior Courts regarding default of pleading have more recently be re-stated: see Rules of the Superior Courts (Procedure on Default) 2021 (S.I. No. 490 of 2021).  Yet, in addition to the inherent jurisdiction of the courts, it might be recalled that at all relevant times the provisions of Ord. 27 (dealing with default of pleading), Ord. 36, r. 12 (serving a notice for trial) and Ord. 122, r. 11 (allowing a party to apply for the dismissal of proceedings where more than two years had elapsed since the last proceeding) were available to both sets of defendants. Given that Mr. Kirwan had been given one further opportunity to pursue his claim in December 2013, I find it somewhat puzzling that no action was taken by either defendant until 2018.

197.     In these circumstances I would reject the arguments advanced by the solicitor defendants in respect of the professional reputation argument for the simple reason that they took no positive steps in a timely fashion to protect that reputation in the course of this litigation. It was, for example, striking that there appears to have been no correspondence from either set of defendants in the period from January 2014 until the appropriate motions were issued in 2018.

198.     While the defendants in the present case were tardy in bringing Ord. 122, r. 11 motions and did so only long after the two-year period had expired, they at least acted. In other circumstances, however, a court might be disinclined to give assistance to a defendant who complained of the impact of the proceedings on their professional or trade reputation but who nonetheless delayed unreasonably in not first calling upon the plaintiff to take steps in the proceedings immediately after the expiration of the two-year period and in not thereafter quickly bringing a motion seeking dismissal of the proceedings pursuant to Ord. 122, r. 11 where this was still necessary.

Part XII - The plaintiff's conduct and any justification for the delay

199.     There remains the question of the plaintiff's own conduct in assessing whether there are any special factors which might justify the court not taking the presumptive step of dismissing the action once the two-year period has elapsed for the purposes of Ord. 122, r.11. While, as has been frequently stated, the courts do not exist for the sake of discipline, the conduct of a litigant is, as I have just indicated, nonetheless not irrelevant.  Here the plaintiff obtained what amounted in substance to a stay on the enforcement of a judgment in respect of a large sum of money in the expectation - if not, indeed, an implicit commitment to this effect - that the plaintiff would prosecute all of his various claims in a speedy and efficient fashion. As I have to sought to explain, he thereby heaped inordinate delay upon a very delayed start to legal proceedings.

200.     Such contumelious delay should not readily be indulged. Delay of this kind has a corrosive effect on the legal system because it obliges the courts to expend precious resources in dealing with stale claims. Judicial acceptance of such delays further helps to create an atmosphere of tolerance and acceptance in respect of delay throughout the legal system and this in turn encourages many litigants and their advisers to believe that their own tardy and inefficient conduct will be excused and indulged. None of this reflects well on the efficiency of the judicial process and it ultimately helps to undermine confidence in the system of administration of justice.

201.     In the present case it is very difficult to avoid the conclusion that Mr. Kirwan was largely content to sit on his hands after the adjournment of the proceedings on 5th December 2013. It is true that on his own version of events he may have served one further notice for particulars in January 2014 against the defendants. But thereafter the proceedings lay entirely dormant for a further four and a half years until the Buttle defendants served a notice of intention to proceed. In the meantime, Mr. Kirwan had the effective protection against any enforcement of the earlier judgment for more than €1m. While the conduct of the defendants in respect of this litigation would admittedly win few prizes, the failure on the part of the plaintiff - who had already long delayed the commencement of the proceedings - to pursue the combined claims with expedition in the wake of that adjournment can only be regarded as conduct which was materially at variance with what was at least the implicit commitment which the plaintiff gave to the High Court in December 2013, namely, that in return for an opportunity to ventilate his entire case and a de facto stay on the judgment obtained by Filbeck in November 2012, he would thereafter proceed with dispatch.

202.     In these circumstances I feel obliged to conclude that this was conduct which was inexcusable having regard to the excessive lapse of time in the course of this litigation, especially when this is measured against the background of the two years period identified in Ord. 122, r. 11.  Had it been necessary to do so, I would have reached this conclusion even on the application  of the "old" unadjusted Primor test.

Part XIII - Conclusions

203.     It remains to summarise my conclusions.  It is clear from this - admittedly far from complete - summary of the case-law that are essentially two overlapping strands to the inherent jurisdiction case-law in respect of delay.  The first strand - represented by cases such as O Domhnaill v. Merrick, Toal v. Duignan (No.1) and Whelan v. Lawn - indicates that lengthy delay in and of itself may in some circumstances justify the striking out of the proceedings even in the absence of fault on the part of the plaintiff. This jurisdiction is, however, an altogether exceptional one and is rarely exercised in practice.

204.     The vast majority of the Ord. 122, r.11/inherent jurisdiction cases (including the present one) fall to be considered by reference to the now adjusted Primor test, a test which overlaps in some respects with the first O'Domhnaill v. Merrick strand. Both strands of the inherent jurisdiction may be regarded as giving effect to constitutional principles reflected in Article 34.1 and Article 40.3.1⁰ and Article 40.3.2⁰ by safeguarding the proper administration of justice on the one hand and by upholding values such as fair procedures and the protection of good name on the other.

205.     Side by side with all of this is the jurisdiction provided for by the Rules of the Superior Courts to deal with default of pleading. Order 27 is a specific rule dealing with default of pleadings. Order 122, r. 11 may be regarded as a specific exemplification which is contained in the Rules which reflects the more general and wider inherent jurisdiction of the Court in the case of proceedings which have been allowed to become dormant. In particular, as I have sought to explain elsewhere in the judgment, the two-year period referred to Ord. 122, r. 11 should remain the primary yardstick by which the question of inordinate delay should be measured.

206.     In this context it is perhaps worth stressing again that Ord. 122, r. 11 does not import some kind of automaticity so far as lapse of time is concerned. In addition to the jurisdiction to dismiss the action, the Court is also expressly empowered by r. 11 "to make such order and on such terms as to the Court may seem just." Save, perhaps, in those cases where the delay has been manifestly contumelious and inordinate such that material and significant prejudice has been established or may readily be inferred, one may expect that in many instances where the High Court is initially seized of an Ord. 122, r. 11 motion shortly after the two year period has expired will initially adopt the case under active case management and resort in the first instance at least to the making of "unless" orders imposing strict time limits on defaulting litigants. One must naturally recall that the striking out of proceedings on these grounds represents a significant interference with the constitutional right of access to the courts and a court taking such a step must be satisfied that, viewing all the facts of the case in a holistic manner that, such a step is indeed warranted.  

207.     It is nevertheless timely to warn litigants who allow their cases to lie fallow for more than two years that they are, so to speak, entering a danger zone where their inactivity puts their litigation at risk. If, thereafter, they continue to ignore warning letters, case management directions and "unless" orders and generally fail to take active steps to advance the litigation in an expeditious fashion then the prospect of the dismissal of the action on this ground must manifest itself as a very distinct possibility.  Where the delays are appreciably longer - such as the four years in this case - this is true a fortiori so that in such circumstances one would normally expect to see the case dismissed without the necessity for proof of prejudice. 

208.     If there are wider lessons to be drawn from this appeal - and the other cases showing delay in the legal system - it may be that the courts must be more vigilant to supervise their own processes. Specifically, in future the High Court should perhaps be less ready to accede to the prospect of open-ended adjournments in cases where there already has been significant delay. There is also a clear need to ensure that complex contractual and commercial cases of this kind do not escape the active case-management procedures which are by now a very well-established feature of the High Court's civil jurisdiction. This will generally involve the High Court in prescribing a timetable for the orderly future conduct of the litigation so that the natural passivity of some litigants is not accidentally rewarded.

209.     It may also be that the Superior Court Rules Committee might wish to look afresh at the existing Rules of the Superior Court so that the principles which emerge from this judgment are more completely reflected in the Rules themselves. Such changes might well include changes to Ord. 122, r.11 such that it gave more guidance to the courts as to when the strike out jurisdiction referred to in this rule is to be exercised. There is also, I suggest, a strong case for adopting and adapting some of the "unless order" provisions of the modern Ord. 27 and applying them to a new or modified version of Ord. 122, r. 11.

210.     All of this is for the future. For the moment it suffices for me to say that judged by reference to the two-year time period in Ord. 122, r. 11 any subsequent delay after January 2016 must be judged to be inordinate. The plaintiff was given one opportunity to pursue his claim with expedition and, regrettably, he spurned that opportunity. Even if it is assumed in the plaintiff's favour that he served both sets of defendants with notices for particulars in January 2014, there was nonetheless no "proceeding" within the meaning of Ord. 122, r.11 for over four years.  This delay was clearly inordinate, not least given that the proceedings had been commenced at least close to the expiration of the six-year limitation period. No acceptable excuse or justification for this subsequent delay has been advanced by the plaintiff.

211.     While it cannot be said that the present case comes within the first, O'Domhnaill v. Merrick-strand of the inherent jurisdiction, I fear that the plaintiff must nonetheless be adjudged to have failed this adjusted Primor test. One must again stress that in Primor Hamilton C.J. drew attention to the fact that "the courts had an inherent jurisdiction to control their own procedure." No real excuse can be offered because the only realistic conclusion that can be drawn from that delay is that the plaintiff took advantage of the adjournment and the de facto stay on the enforcement of the judgment which had been obtained by Mr. Buttle. He had at least implicitly represented in December 2013 that he would move with dispatch if given that (final) opportunity to advance his full case and, to repeat, this he did not do.

212.     To that extent, I find myself in agreement with the conclusions of both Meenan J. in the High Court and those of Power J. in the Court of Appeal that the proceedings should be struck out. The defendants have established that the delay was inordinate by reference to Ord. 122, r.11. The plaintiff has not excused or otherwise justified that delay or displaced the presumption that the strike out jurisdiction should generally be exercised in such circumstances. Given, moreover, that the plaintiff must be adjudged to have spurned the final opportunity given to him by the High Court in December 2013 by taking no substantive steps in the action for well over four years thereafter this simply is another example of how the plaintiff failed to excuse these delays.

213.      I would accordingly dismiss the appeal.

 

 

 

 

 

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