AN CHÚIRT UACHTARACH
THE SUPREME COURT
Supreme Court Record Number: S:AP:IE:2023:000001
Dunne J.
Charleton J.
O'Malley J.
BETWEEN/
BRENDAN KIRWAN
APPLICANT/APPELLANT
– AND –
MARGUERITE CONNORS TRADING UNDER THE STYLE OF MJ O'CONNOR SOLICITORS, MJ O'CONNOR SOLICITORS, EAMONN BUTTLE, FILBECK LIMITED, NORMAN BUTTLE, MARY BUTTLE, HILARY BUTTLE, JOHN O'LEARY TRADING UNDER THE STYLE OF MJ O'CONNOR SOLICITORS, BRID O'LEARY TRADING UNDER THE STYLE OF MJ O'CONNOR SOLICITORS
DEFENDANTS/RESPONDENTS
JUDGMENT of Mr. Justice Brian Murray delivered on the 30th May 2025
1. The motions giving rise to this appeal sought to dismiss these proceedings for want of prosecution. By the time they were issued in August 2018, the twelfth anniversary of the critical event giving rise to the claim had just passed. Much of the plaintiff's claim was directed to dealings between the parties a year before that again. The action itself (issued, at best, at the cusp of the statutory limitation period) was then over five years old. If the plaintiff had taken a single step in the prosecution of the claim since December 2013, he was unable to prove this by any independent evidence. The excuses proffered by the plaintiff for his failure to move the action along during this period were implausible, his inactivity being all the more culpable given that the action had operated as an effective stay on the execution of a judgment for over €1M obtained against the plaintiff in favour of the fourth named defendant. If the claim were not to be dismissed for want of prosecution, that could only have been because the law deemed it inappropriate to do so where the defendants had not been in a position to establish any defined and specific prejudice as a result of the passage of time and/or where they themselves had taken no steps to dismiss the claim or otherwise to progress it during the period when the case was moribund.
2. The question of whether one, other, or a combination of these factors would operate so as to defeat the defendants' application for dismissal falls to be addressed in the context of a power that has generated a vast body of - sometimes inconsistent - authority. There are cases suggesting that after a delay of this duration, prejudice could be presumed or that the inevitable impact of the passage of time on memory would itself justify dismissal of a claim which has been allowed to lie fallow for so long. There are also cases saying that more concrete prejudice is required to dismiss a claim, even after a substantial delay in the prosecution of the action. While there is a general consensus that a court should not in an application to dismiss proceedings for want of prosecution ignore a failure by defendants to comply with obligations imposed upon them by the Rules of the Superior Courts ('RSC') or by court order, there are also dicta proposing that the courts should 'take account' of any form of inactivity by defendants. There are, moreover, decisions suggesting that a defendant who is sued comes under an obligation of some kind from some source to take steps to expedite the action that has been brought against them.
3. The evaluation of the role of these two factors in the exercise of the court's power to dismiss an action for want of prosecution lies at the centre of this appeal. However, they present more fundamental issues with the jurisdiction as it has evolved. These are not merely consequences of the broad and sometimes inconsistent terms in which some of the cases condition the power, but are products of a more fundamental misconception as to the proper legal basis for applications of this kind.
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4. Applications to dismiss proceedings because of the passage of time between the wrongful acts alleged to give rise to a suit and the bringing of the application now attract a wide range of descriptions. They are variously referred to as applications to dismiss for 'delay', for 'want of prosecution', for 'prejudicial delay', 'in the interests of justice', pursuant to 'the inherent jurisdiction', 'on grounds of a real and serious risk of an unfair trial', 'for inordinate and inexcusable delay' or (and less commonly) for delay amounting to an 'abuse of process'. Yet, these labels mask a variety of powers the purposes of which may sometimes overlap, but which are also distinct.
5. Putting to one side those provisions of the Rules of the Superior Courts that confer an express jurisdiction on the court to dismiss proceedings 'for want of prosecution' where there has been a default in compliance with specific obligations imposed by the Rules (O. 27 r. 1, O. 31 r. 21, and O. 36 r. 12 and 13), there are four more general powers of relevance to the jurisdiction to dismiss proceedings consequent upon the passage of time: (a) the power expressly conferred by O. 122 r. 11 RSC to dismiss proceedings for want of prosecution where there has been no proceeding in the case for two years, (b) a power to dismiss proceedings for want of prosecution that has been located in many cases in the 'inherent jurisdiction of the court' (which it has been suggested replicates the express power conferred by O. 122 r. 11 minus the requirement that there has been no proceeding in the case for two years), (c) the power first suggested in the decision of this Court in O'Domhnaill v. Merrick [1984] IR 151 ('O'Domhnaill') to dismiss proceedings where, by reason of the passage of time alone and irrespective of whether a plaintiff has been responsible for that delay, a defendant can no longer obtain a fair trial, and (d) the power to dismiss proceedings where their institution or maintenance constitutes an abuse of process.
6. The third and fourth of these are closely related - to the point that they may well be the same thing. [1] They are not in issue in this appeal. In particular (and as to the third), the power first suggested in O'Domhnaill arises only where the effect of the delay is such as to present a real and substantial risk not merely that the defendant will be prejudiced, but that the trial to which it is proposed they should be subjected will not be a proper trial at all: the jurisdiction is operative where, and only where, the trial of the action it is sought to dismiss would be 'far removed from the form of forensic enquiry which is envisaged in the notion of a fair trial in accordance with the law of this State' (Kelly v. O'Leary [2001] IEHC 218 at p. 25, [2001] 2 IR 526 at p. 544 (per Kelly J.)). By definition, as the Court has recently confirmed, this is 'an exceptional jurisdiction which must be used rarely' (IBRC v. Fingleton [2024] IESC 59 at para. 76 per Woulfe J.). It is common case that that (extremely high) bar has not been met here. As to the fourth power, abuse of process requires some wrongful manipulation or application of the court procedure, and that jurisdiction was not invoked in the motions with which the Court is now concerned.
7. Both the O'Domhnaill jurisdiction and the power of the court to protect its processes against abuse are inherent in the High Court, and it is that same 'inherent jurisdiction' that was said in the judgment of this Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459 ('Primor') to ground the jurisdiction of the courts to dismiss proceedings for want of prosecution. That has led to the view that the High Court can entertain applications to dismiss proceedings for want of prosecution at any time of a defendant's choosing, such applications being disposed of by reference to whether there has been 'inordinate and inexcusable delay' by a plaintiff and, where there has been such delay, whether the 'balance of justice' merits dismissal of the claim. This is, as it was admiringly described by counsel for some of the defendants during the hearing of this appeal, an 'open-ended' power to dismiss stateable proceedings duly instituted within the statutory limitation period without a trial on the merits. Obviously, the jurisdictional basis for such a severe interference with the right of a person to litigate a justiciable controversy should be clearly grounded in certain and accessible legal authority.
8. While it might not be wrong, as some of my colleagues do, to describe these various powers as 'part of a continuum', different powers along that continuum have different functions, purposes and parameters. The power to dismiss proceedings as an abuse of process is directed to protecting the procedures of the court against wrongful manipulation. The power to dismiss proceedings on foot of the O'Domhnnaill jurisdiction may be a particular implementation of that, but the objective there is more focussed, and is directed to protecting a defendant against a fundamentally unfair procedure. The power to dismiss proceedings 'for want of prosecution' is, as the description suggests, intended to allow the courts to examine whether a claim is actually being progressed, and to dismiss it if it is not. That achieves a number of objectives including those underpinning the two powers I have just mentioned: the protection of the court processes against what might well be termed the abusive practice of allowing them lie fallow, and the protection of defendants against the potential unfairness of having to meet such claims. But it also reflects the demands of an adversarial system in which, historically, the function of progressing litigation has depended upon the pro-activity of the parties (and specifically of the plaintiff) rather than upon the sua sponte intervention of the court. The power to dismiss a claim for want of prosecution ensures that plaintiffs who do not proactively pursue their claims, and who instead leave their cases lie without taking the most basic of procedural steps for a protracted period of time, do so knowing that they face the risk that their claim will be dismissed without a trial on the merits.
9. Because the reasons these distinct powers are conferred by the law are different, the criteria applied in their implementation must reflect those objectives and will, therefore, also be different. In the particular case of the power to dismiss for want of prosecution, those criteria must reflect not merely the injustice to a defendant of having to meet a stale claim, but the reality that it is by having a rule that plaintiffs who do not prosecute their cases will face the prospect of their claims being dismissed that the law seeks to ensure that a plaintiff who has invoked the court processes and exposed another party to the cost and inconvenience of having to meet that claim, duly prosecutes that action.
10. Armed with that starting point, a proper delineation of the power thus in issue - and the criteria properly brought to bear on its exercise - requires a clear identification of where the power comes from. This, necessarily, is the first step in defining the test to be applied when exercising that power.
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11. Order 122 Rule 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.'
(emphasis added).
12. As Hogan J. suggests in his judgment, this provision has a long lineage. It derived from General Order 178 of the General Orders of the Superior Courts of Common Law made in 1854 pursuant to the provisions of s. 233 of the Common Law Procedure Amendment Act (Ireland) 1853. [2] Central to the operation of that Order was the 'rule for liberty to proceed'. Before a step could be taken in an action in which the defence had been filed but where there had been no proceeding for a period of time, this had to be obtained and served on the opposing party; after one year of such inactivity the rule issued automatically from the office, but after two years had to be secured from the court on foot of a notice of motion served on the defendant. In deciding whether to issue that liberty and thus permit the action to proceed, the court would have regard to the reason for the delay, and the prejudice sustained by the opposing party (Bewley, The Common Law Procedure Acts Dublin 1871 pp. xliv-xlv, Kennedy v. Gregg (1854) 4 Ir. CLR 132, O'Callaghan v. O'Callaghan (1861) 12 Ir. CLR Ap. 46).
13. That general idea was taken up but significantly modified in O. 64 r. 11 of the Rules of the Supreme Court (Ireland) 1891 and O. 64 r. 15 of the Rules of the Supreme Court (Ireland) 1905 ('the 1905 Rules'), each of which required the giving of a notice of intention to proceed after one year in which there had been no proceeding, and which allowed the defendant to apply to dismiss proceedings 'for want of prosecution' after two years irrespective of whether a defence had been filed. The same rule was adopted in the Rules of the Superior Courts 1962 (O. 108 r. 11), and repeated in the present Rules. It is critical to an understanding of the decisions of the English courts that have featured so prominently in the earlier Irish jurisprudence around that power that neither the equivalent in that jurisdiction of the General Orders of 1854 [3], nor any of the subsequent Rules of the Supreme Court applicable in England contained an express power that was equivalent to these provisions of the Irish rules. It is, to that extent, to be expected that in that jurisdiction, the power to dismiss proceedings for want of prosecution was located wholly in the inherent jurisdiction of the Court.
14. Reported authority does not seem to have identified such an 'inherent jurisdiction' in England until the late 1960s, when (as I explain shortly) it was tied to establishment of an 'inordinate and inexcusable' delay by the plaintiff that had caused some degree of prejudice to the defendant. These terms and requirements, it must be stressed, were entirely a product of the case law in that jurisdiction at that time, and were - as with any test crafted by the courts to condition the exercise of a statutory or inherent discretion - 'fashioned from whole cloth'. No real attempt has ever been made in the case law here to relate that 'inherent' jurisdiction to the provisions of the governing rules that applied in this jurisdiction. Indeed, it is not clear that the difference between the Rules in Ireland and in England was fully understood when the courts here turned to the English cases to define the conditions under which a case that was not being prosecuted would be dismissed.
15. In contrast, since 1891 the language of O. 122 r. 11 ('the Rule') has provided a clear and startlingly simple benchmark for the exercise of the same power in Ireland. The court is concerned only with whether there has been two years in which there has been no proceeding in a case and, if there has been such inactivity, whether it should exercise its discretion to dismiss the action. Obviously, a plaintiff who has not taken a proceeding may still be 'active' in the sense of preparing their case for trial, taking advice or seeking witnesses; self-evidently, a plaintiff should not be penalised for procedural inactivity in prosecuting an action for which there is a reasonable explanation and clearly that discretion must be exercised by reference to some definite and identified criteria.
16. Bearing this in mind, some particular features of the Rule should be observed:
(i) The provision is concerned with (and only with) procedural inactivity by both parties. So, the taking of steps to advance a case other than through court proceedings does not stop time running under the Rule.
(ii) A defendant who takes a procedural step in the action will thereby lose the entitlement they might otherwise have had to apply to dismiss the case.
(iii) If the two-year period has elapsed, a defendant will always have advance notice before a plaintiff reactivates their case: the plaintiff must serve a notice of intention to proceed one month before they can invoke any court procedure. Such a notice is not itself a step in the proceedings, and thus does not stop time running for the purposes of the provision. Upon being served with such a notice, a defendant then has an option of whether to allow the plaintiff to proceed (in which case the defendant loses the opportunity to apply to dismiss the action for want of prosecution unless the step taken is followed by a further two year period of procedural inactivity), or to proceed to apply to dismiss the claim for want of prosecution.
17. It is significant that the provision operates on the basis not merely that it is the plaintiff that must take the initiative to move the action along, but that it is by neither party taking any procedural step for two years that the defendant obtains the right to bring the application to dismiss in the first place. The Rule thus envisages that a defendant can sit back comfortably in the knowledge that if the plaintiff allows two years to pass without taking a procedural step in the case, the defendant will have the benefit of one month's warning before the action is reactivated. It should be said that while this appears to be a significant advantage for the defendant, the defendant has had imposed upon it an important restriction: the opportunity to move for dismissal only arises if there has been a complete cessation of procedural inactivity in the case for at least two years. A plaintiff can easily deprive a defendant of the ability to seek dismissal of its action for want of prosecution, by prosecuting it.
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18. Young barristers learn fairly quickly that if they wish to urge a judge to embark upon a particular course of action but cannot find any statute, rule, or decided case that authorises such a step, they should appeal to the court's 'inherent jurisdiction'. Even if ultimately not entirely successful, they are unlikely to be told that they are completely wrong. As the author of one influential analysis observed of the phrase: '[t]his peculiar concept is so amorphous and ubiquitous and so pervasive in its operation that it seems to defy the challenge to determine its quality and to establish its limits' (Jacobs 'The Inherent Jurisdiction of the Court' (1970) 23 Current Legal Problems 23).
19. Putting to one side the desirability in a system governed by the rule of law of wide ranging, 'open-ended' and unwritten implied judicial powers, the term 'inherent jurisdiction' is not only vague, but rooted in a wholly ambiguous concept. This is because 'jurisdiction' can refer to two things which, while in some cases they may overlap, are different in legal character. This is the point made by Donnelly in her invaluable survey 'Inherent Jurisdiction and Inherent Powers of Irish Courts' (2009) 2 JSIJ 122. It may refer to 'subject matter' or it may refer to the 'power' to initiate an essentially procedural action.
20. The High Court has a jurisdiction in the first of these senses that is full and original, as indeed Article 34.3.1° of the Constitution provides. Courts of local and limited jurisdiction do not have any 'inherent jurisdiction' in this sense of the term nor, for that matter, do superior appellate courts. Viewed in terms of 'subject matter', the High Court has various 'inherent jurisdictions' which have been described elsewhere as 'the piecemeal jurisdictions .. inherited from the superior courts in England' (Rosara, 'Inherent Jurisdiction and Inherent powers in New Zealand' (2005) 11 Canterbury LR 220), (and to which can be added in Ireland, certain constitutionally derived jurisdictions). These allow the High Court to determine matters involving children, solicitors, or Wards of Court. It can admit to bail, assert the jurisdiction we now call 'Judicial Review', vary trusts and exercise a contempt jurisdiction of its own motion over persons who are not party to any lis before it. These manifestations of inherent subject matter jurisdiction are significant and, generally speaking, one expects that if they are to be completely taken away by legislation (where it is constitutionally possible to do so), this would be done clearly and comprehensively (see Zaoui v. Attorney General [2005] 1 NZLR 666). It may well be that the legislature cannot validly abrogate all residue of at least some of these 'inherent jurisdictions', and cases may well arise in which it is thought appropriate that limitations on the inherent subject matter jurisdiction of the High Court should be imposed only by primary, and not secondary, legislation.
21. However, one also sees the term 'jurisdiction' being used to describe what is, in fact, a procedural power. When used in this sense, 'inherent jurisdiction' refers to the ability of a court to take steps to control proceedings before it, to protect its processes against abuse and to obtain fairness of procedures pursuant to what are, in effect, implied powers. All courts - or at least all courts of record - enjoy powers of this kind as a necessary adjunct to their functions in administering justice. Judges thus have the inherent power to fix deadlines for the taking of various steps in an action, to make 'unless' orders, to enforce those orders by inter alia dismissing the claim or defence of a party that fails to comply with them, and more generally to protect their procedures from wrongful manipulation. They also enjoy extensive powers of case management including the ability to limit evidence, cross-examination or submissions in a case (see Talbot v. Hermitage Golf Club [2014] IESC 57 and more recently The People (DPP) v. Sweeney and ors. [2024] IECA 205 at para. 47). However, the very nature of these powers is such that they can be conditioned by legislation, and indeed are in many cases supplanted by detailed provision in the Rules. Where this occurs, the terms and conditions pursuant to which the previously inherent power is exercisable are those provided for in the legislation. The position was clearly explained by Murray J., as he then was, in G.McG v. DW (No. 2) [2000] 4 IR 1, at p. 27:
'Where the jurisdiction of the courts is expressly and completely delineated by statute law it must, at least as a general rule, exclude the exercise by the courts of some other or more extensive jurisdiction of an implied or inherent nature. To hold otherwise would undermine the normative value of the law and create uncertainty concerning the scope of judicial function and finality of court orders. It may indeed be otherwise where a fundamental principle of constitutional stature is invoked against a statutory or regulatory measure determining jurisdiction ...'
22. Clarke J., as he then was, in the course of his judgment in Mavior v. Zerko Ltd. [2013] IESC 15, [2013] 3 IR 268, 275 elaborated on these comments. There, the question was whether the provisions of O. 29 RSC had operated to oust the inherent power of the courts to direct security for costs. Clarke J. interpreted these statements of Murray J. as a caution against the creation of parallel jurisdictions for resolving much the same area of controversy founded on, on the one hand, existing law and on the other hand, an asserted inherent jurisdiction. He emphasised the principle he understood to have been enunciated in G.McG v. DW (No. 2): 'to attempt to invoke an inherent jurisdiction of the courts so as to go beyond delineation specified ... in a statute ... would be for the courts to trespass on the legislative role...'. This could not arise, he said, where a relevant jurisdiction might not be the subject of any complete delineation by statute, as would happen where the Rules merely regulated the procedural manner in which an inherent court jurisdiction may be pursued. Insofar as the rules addressed the question of security for costs, he said, they did not purport to create a comprehensive code for the regulation of that jurisdiction and O. 29 r. 1 (which in fact assumes a pre-existing power) did not do so.
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23. In theory, one can see how it might be said that that the present High Court or its predecessors had, at some point in time, an inherent power to dismiss a plenary action 'for want of prosecution'. In Kerry County Council v. Gun Browne [1946] Ir. Jur. Rep. 1, the High Court confirmed its jurisdiction to dismiss a proceeding initiated by summary summons when the plaintiff although called upon to set the summons down for hearing, failed to do so, and notwithstanding the absence of any express provision in the Rules of the High Court and Supreme Court 1926 ('the 1926 Rules') enabling this to be done. In truth, this was little more than an example of the court's power to present the plaintiff with the option of taking a required step or having their case dismissed (the action was set down and the case proceeded to full trial: [1948] IR 399). [4] Similarly, in Dhand v. McCrabbe (1962) 96 ILTR 196 this Court confirmed its inherent power to dismiss an appeal for want of prosecution. However, the first suggestion of an 'inherent jurisdiction to dismiss for want of prosecution' where there had been no specific defaults of these kind but instead 'inordinate and inexcusable delay' and 'serious prejudice', appeared in the judgment of the English Court of Appeal in Reggentin v. Beecholme Bakeries (1967) 111 SJ 216. Then, Salmon LJ in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 QB 229 ('McAlpine') said (at p. 268):
'A defendant may apply to have an action dismissed for want of prosecution either (a) because of the plaintiff's failure to comply with the Rules of the Supreme Court or (b) under the court's inherent jurisdiction. In my view it matters not whether the application comes under limb (a) or (b), the same principles apply.'
24. Noting that the first of these categories was addressed to specific powers conferred by the then English rules to dismiss for prosecution where there had been particular procedural defaults (rather than to a general power of the kind provided for in O. 122 r. 11), and while these cases may have marked the first occasion on which this jurisdiction was thus identified and defined, that there is such a power has been consistently restated since in the United Kingdom. This was confirmed by Denning MR in Thorpe v. Alexander Fork Lift Trucks Ltd. [1975] 1 WLR 1459 at p. 1463, by the House of Lords in Birkett v. James [1977] 3 WLR 38, and was restated again in Barratt Manchester Ltd. v. Bolton MBC [1998] 1 WLR 1003. By the time, however, this jurisdiction was identified in England, it had long been the subject of express regulation in Ireland, that regulation being adopted immediately upon the establishment of the new courts in 1924. [5]
25. There are, as I have previously observed, various powers of dismissal 'for want of prosecution' provided for in RSC and triggered where there has been a failure by the plaintiff to comply with specific requirements of the Rules. These include the situation where six weeks have elapsed since the pleadings closed and the plaintiff has failed to serve a notice of trial (O. 36 r. 12(b)). Order 122 r. 11 was clearly intended to supplement these with a more general 'fall back' power of dismissal where there had been no specific failure by the plaintiff to do anything they were specifically required to do, but where they had failed to observe the general expectation that having commenced a suit, they would take steps to prosecute it. As I have earlier noted, that power is very significantly constrained - a two-year period must have elapsed since either party took any procedural step in the case. It is also a power with its own internal balance and dynamic: a plaintiff can avoid dismissal by taking such a step, while a defendant can make a choice between avoiding the prejudicial effect of the passage of time by themselves moving the action along, or they can wait for two years - or longer - to pass, and then apply to dismiss, or indeed apply to dismiss only when the plaintiff serves a notice of intention to proceed.
26. To my mind, this is clearly a self-contained rule presenting precisely the 'delineation' to which Clarke J. referred in Mavior v. Zerko Ltd., and which the imposition of a parallel inherent jurisdiction would undermine. The Rule cannot be reconciled with the co-existence of a power vested in a court to entertain an application by a defendant, made at a time of the defendant's choosing, to dismiss plenary proceedings for want of prosecution. Instead, the clear intent and effect of the Rule is that it is when and only when the conditions identified in that provision are met that a defendant obtains the right to seek that relief. It makes little sense to me that the RSC - which it is too easily forgotten comprise legislative measures made under the authority of an Act of the Oireachtas - limit the right of a defendant to bring such an application only after the expiry of a two-year period of delay, yet that the defendant can actually invoke an inherent jurisdiction to make such an application at any time. It is also, I would add, quite unfair to a plaintiff to find that while they are led to believe by the published Rules of Court that if they take bona fide procedural steps within a two-year period their claim cannot be dismissed for want of prosecution, the defendant is actually entitled to invoke a free-floating 'inherent jurisdiction' to seek a dismissal no matter when their last action. All of that being so, it is in my view unsurprising that in Comcast International Holdings Inc. v. Minister for Public Enterprise [2012] IESC 50 ('Comcast') Clarke J. referred to the operation of the inherent jurisdiction in the field covered by O. 122 r. 11 in noticeably tentative and guarded terms (at paras. 5.21-5.22).
27. The correct approach is that proposed by Carswell J., as he then was, in Bannon v. Craigavon Development Commission [1984] NI 387 ('Bannon'). In Northern Ireland, the 1905 Rules applied until they were replaced in 1980 (when, notably, the jurisdiction to seek a dismissal after two years of inactivity was retained notwithstanding the absence of an equivalent in the then English Rules, see the Rules of the Supreme Court (Northern Ireland) 1980 Order 3 Rule 6). In Bannon Carswell J. observed that the Rules in England had never conferred such a power and declined to allow an application to dismiss for want of prosecution pursuant to the inherent jurisdiction of the court where one of the defendants took a step in the action within the two-year period before the bringing of the application. While not deciding the issue finally, he suggested that the constraints imposed by the Rule were such that either he did not have the power to dismiss the action under the inherent jurisdiction or, if he did, it would not be proper to exercise it given that the conditions in the Rule were not met. In NIHE v. Wimpey Construction Ltd. [1989] NI 395 Nicholson J. reached a different view, relying on the analysis by Jacob to which I have earlier referred, where the following was said (at p. 25):
'The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction.'
28. This was one of two considerations that caused Carswell J. in Braithwaite & Sons Ltd. v. Anley Maritime Agencies Ltd. [1990] NI 63 to revisit the conclusion he had suggested in Bannon, deciding that the inherent jurisdiction to dismiss proceedings for want of prosecution and a power granted under the Rules could properly co-exist. The reasoning of the Jacobs article (which is not supported by reference to any authority) seems to me to be misdirected, and to be inconsistent with the position as expressed in the cases from this jurisdiction to which I have referred. It has been observed that the analysis generally confuses inherent jurisdictions properly so called, and inherent powers (see Rosara at p. 221). Moreover, it was grounded on a view of the Rules of Court as the product of an exercise of judicial power [6] and to that extent an outgrowth of the inherent jurisdiction [7] which, in this jurisdiction, they are emphatically not (see Delaney v. Personal Injury Assessment Board and ors [2024] IESC 10 per Collins J. at para. 195).
29. The second consideration that weighed heavily with Carswell J. was nineteenth century authority in which it had been found that the courts had the inherent power to stay proceedings as frivolous and vexatious on the basis of affidavit evidence as to the facts, notwithstanding an express power vested by the Rules to make such an order that was operative only where the pleadings disclosed no cause of action. The same conclusion, indeed, was reached by Costello J. in Barry v. Buckley [1981] IR 306. There, Costello J. found that the High Court had an inherent jurisdiction to stay proceedings on the basis that they were frivolous and vexatious and that, on applications made to exercise that power, it could hear evidence on affidavit relating to the issues in the case. He found that the fact that O. 19 r. 28 RSC conferred an express power to strike out pleadings that were frivolous or vexatious did not affect that inherent power.
30. The question in Barry v. Buckley was, however, quite different from that in issue here. There, as Costello J. observed, the 'inherent jurisdiction' in play was the power to ensure that an abuse of the court's process did not take place. [8] It is, and always has been, an abuse of the court's process to institute proceedings that are frivolous and vexatious. By conferring a power to dismiss proceedings where the pleadings were frivolous and vexatious the Rules confirmed one component of that jurisdiction but did not purport to expressly condition any other aspect of it. To return to the language of Mavior v. Zerko Ltd., the Rule neither delineated nor purported to comprehensively regulate the abuse of process jurisdiction. Therefore, the general power to act to prevent abuse retained its vitality. That conclusion, I should say, is not affected by the fact that both the jurisdiction recognised in Barry v. Buckley and the 'inherent jurisdiction to dismiss for want of prosecution' may enjoy a common ancestry. To revert to a point I made earlier, both clearly function to regulate the conduct of legal proceedings in the interests of the good and fair administration of justice, but they have their own distinct features and requisite elements. It will always be an abuse of process to force a defendant to meet a case that is bound to fail, but it will not always be an abuse of process to fail to prosecute an action for a period of time. This is why it is necessary to differentiate one of these from the other, and why it is appropriate that the regulation of one does not displace the other. What it does not mean is that by regulating one, the inherent power from which it previously derived continues to function. The appropriate legislative body has intervened to condition what was previously an open-ended power; it makes no sense to propose that that open-ended power continues to survive so as to defeat the legislatively imposed condition.
31. Similarly, O. 122 r. 11 does not prevent the court from using its inherent powers where a party engages in delays that constitute an abuse of process (this is in part why the O'Domhnaill jurisdiction remains intact notwithstanding the rule). But where the only issue is simply whether the plaintiff is 'prosecuting' their action, one is usually some distance short of an abuse of process. O. 122 r. 11 is the heavily circumscribed legislative expression of when the power to dismiss proceedings for want of prosecution can be resorted to where there has been no specific default under the Rules. It would be wrong to override the conditions attached to that power by invoking an 'inherent jurisdiction' to dismiss on precisely that ground. It makes a nonsense of the Rules to say that a defendant can apply to dismiss an action for want of prosecution where there has been two years of procedural inactivity in a case, but that actually they can also apply as and when they please, where there has not been such inactivity.
32. Throughout the judgments of the Chief Justice, and of Hogan and Collins JJ, a variety of propositions are advanced in support of the contention that O. 122 r. 11 does not 'delineate' the jurisdiction to dismiss for want of prosecution in a sufficiently comprehensive way to displace the 'inherent jurisdiction' to dismiss proceedings for want of prosecution. The argument, with respect to my colleagues, seems to be largely conclusory, and I struggle to identify in their judgments any principle by reference to which a sufficient 'delineation' for this purpose can be differentiated from a provision which exists in parallel to the 'inherent jurisdiction'. Certainly, it cannot be because the relevant provisions appear in the Rules rather than in primary legislation. Mavior v. Zerko Ltd. was concerned with the application of the decision of Murray J. in G.McG v. DW (No. 2) to the provisions of the Rules, not to primary legislation. The rationale applies to the Rules as it applies to primary legislation, subject to the proviso (specifically observed by Clarke J. at para. 21 of his judgment) that as secondary legislation the Rules regulate rather than create jurisdictions, and cannot step outside the boundaries of their parent Act.
33. I would have thought that the question of whether a jurisdiction is completely delineated or not is resolved by inquiring as to whether the legislative measure imposes restrictions on the exercise of the power in question that cannot sit with the operation of an inherent jurisdiction that is shorn of those conditions. If that is not the test, then it is not obvious what the proper analysis is. If I am incorrect, then swathes of the Rules that function to condition the court's pre-existing inherent powers by reference to strict requirements are now 'up for grabs' so that applicants can now simply avoid those strictures by invoking the inherent jurisdiction. Amongst the more obvious examples are the power of renewal of a summons under O. 8 Rule 1, the provisions governing service out of the jurisdiction provided for in O. 11 (in which respect see Delany and McGrath Civil Procedure (5th Ed.) at paras. 1-82-1-84 recording the 'conventional view' that this provision is exhaustive, and identifying some outlying authorities suggesting otherwise) and indeed the regulation of the procedure governing the seeking and making of discovery in O. 31 RSC, to take but a few examples. To say that the introduction of such uncertainty around the parameters and content of our Rules of Civil Procedure is undesirable is, I think, a significant understatement. To suggest that these, or other, provisions of the Rules which express powers that would otherwise be inherent in the Courts are invalid if they displace those inherent powers is not only wrong, but counterproductive: the comments of Finlay Geoghegan J. in M.O'S v. Residential Institutions Redress Board [2018] IESC 61, [2019] 1 ILRM 149 that are relied upon by Collins J. in this connection are concerned with the displacement of the courts' inherent jurisdiction in the strict sense of that term as I have explained it earlier (in that case, the inherent jurisdiction now reflected in O. 84 RSC). If it is not possible to closely regulate the inherent powers of the courts by the Rules, many of those Rules are pointless.
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34. It was the English cases that both resulted in the jurisdiction being rooted in the inherent power of the court, and animated the criteria articulated in Primor. In England, as I have noted, there was no equivalent to O. 122 r. 11 so it made sense both that the jurisdiction was rooted in the inherent power of the court, and that the judges defined the power by reference to whether, in the first instance, there had been a delay that was 'inordinate'. Neither was necessary here, the jurisdiction being expressly conferred and conditioned, and the Rule identifying what was 'inordinate'. In proceeding to analyse the matter solely by reference to the inherent jurisdiction, the Court in Primor fell into error.
35. While the Rule was quoted in Primor (at p. 466 of the judgment of Hamilton CJ), the decision itself (at p. 475) was located firmly in the inherent jurisdiction of the court, and the relationship between the two was not addressed. However, that relationship was subsequently considered by Murphy J. in Collins v. Dublin Bus (Unreported, Supreme Court, 22 October 1999) ('Collins'). The action involved an accident that occurred in May 1985, an application to dismiss being brought eleven years later. The application was for 'an order dismissing the Plaintiff's claim ... on the grounds that the Defendants are prejudiced in defending this claim by reason of an inexcusable delay on the part of the Plaintiff in prosecuting her claim herein.' The High Court dismissed the case 'for want of prosecution'. However, the application to dismiss was not preceded by two years of inactivity and, before this Court, counsel for the plaintiff contended that the Court could not as a result entertain the application.
36. That argument was rejected; the application, said Murphy J. (with whom Denham and Lynch JJ agreed):
'was not an application to dismiss for want of prosecution. It was a similar but distinct application ... to dismiss for reasons of delay - delay which was both inordinate and inexcusable and prejudicial to the Defendants. The distinction has been recognised in many cases of which NIHE v. Wimpey [1989] NI 395 is one example. In this jurisdiction the position of parties to litigation is protected by the Constitution. This is expressly recognised in the principles enunciated by the Chief Justice in Primor .... The statement by the Chief Justice reaffirmed the proposition 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.'
37. I think it a mistake to read too much into this decision - which was delivered at a time when the various powers I have earlier identified were not clearly differentiated in the cases. In this paragraph alone there is reference to dismissal 'for want of prosecution', for 'delay', and in 'the interests of justice' as if these were in substance the same thing, being differentiated only by the source of the respective jurisdictions when, we now understand, they are not. It may well be that the Court was distinguishing between dismissal under the Rules (for want of prosecution) and dismissal pursuant to the inherent jurisdiction (for delay and in the interests of justice). However, Primor proclaimed itself to be a case about dismissal for want of prosecution - that is what the list of frequently cited principles are directed to (p. 467). I think that Collins is best viewed as one of the early decisions - as on one view is Primor itself - in which the courts did not clearly distinguish between the jurisdiction to dismiss for want of prosecution properly so called (in which by definition the plaintiff has been in default) and the power to dismiss for non-culpable delay envisaged by O'Domhnaill. Later cases have sharpened the difference between these two powers. Once that is understood, it is clear that the decision in Collins does not outrule the finding that the jurisdiction to dismiss for want of prosecution should be viewed as being rooted in the Rules to the exclusion of the inherent power and if Primor is to be over-ruled, Collins falls by the same sword. In any event, Collins was a case involving not merely a significant lapse of time, but also acute prejudice: the driver of the vehicle alleged to have caused the accident giving rise to the proceedings had passed away in 1988, and the period of inactivity was such that the defendant had caused its file on the claim to be closed. While fully accepting that it was not so described, it is best viewed now as an application of the O'Domhnaill jurisdiction in a case in which the defendants were, as Murphy J. put it, 'gravely prejudiced'.
38. All of that being so, it is possible to now simplify somewhat the rules governing the dismissal of proceedings for want of prosecution in the absence of a default in compliance with a specific rule or order of the court. The power of the court to make such an order arises only where there has been two years of procedural inactivity in a case. If there has been such inactivity, the defendant may apply to dismiss the case for want of prosecution, and if there has been no such inactivity it cannot (unless such activity as can be shown to have occurred was merely a manipulation of the court process, and thus an abuse of it). If a defendant can and does avail of that facility, the onus falls on the plaintiff to establish why the court in its discretion should not dismiss the proceedings. There is no need to ponder whether there has been an 'inordinate' delay: this has been defined by the Rule. The only question is how the discretion thus activated, should be exercised.
39. While this means that Primor was wrongly decided insofar as it rooted the power of the court in the inherent jurisdiction, and thus failed to take account of the need for a two year period of inactivity before the jurisdiction can be invoked at all (an omission of real significance when it comes to the role of defendant inactivity in the exercise of the jurisdiction), some features of the analysis in that case reflect common sense, and are equally applicable to the exercise of the court's discretion under O. 122 r. 11.
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40. Collins J. is entirely correct when he observes that the judgment of Hogan J. (with which a majority of the Court are in agreement) effects much more than an 'adjustment' of Primor. However, while the Chief Justice is of the view that Primor cannot now be 'extirpated', I do not understand the judgment of Hogan J. as shirking from the fact that Primor is being over-ruled. The 'test' formulated in Primor is condemned as lending itself to 'subjective and inconsistent application'. Primor is said to require 'revision', parts of it are described as being 'clearly wrong' and the end result is observed by Hogan J. as 'a significant shift from Primor'. This is an entirely correct description of the effect of today's decision: the majority is demanding that the two year period in O. 122 r. 11 be 'the principal yardstick of delay'. The majority judgment acknowledges that, henceforth, the focus is on simple lapse of time, and this is in principle enough to permit dismissal for want of prosecution without showing anything else such as prejudice. While I do not agree with all of the majority judgment, the question of the demise of Primor is not in doubt: the decision is being over-ruled and the approach adopted in that case is replaced with a test that is rooted in the two year period referred to in the relevant Rule. Where I disagree with the majority is, first, in the question of where the power is now properly located and, second, the extent to which the provisions of O. 122 r. 11 continue to function in the shadow of uncertainty cast by the 'inherent jurisdiction' which, it seems, will continue in some vague sense to overhang this ubiquitous feature of our procedural law. Moreover I cannot accept that there is any obligation on a defendant to bring any application after the expiry of two years of plaintiff inactivity. Maintaining 'the inherent jurisdiction' on life support, as the majority is intent on doing, perpetuates the uncertainty this decision is intended to address and that proviso is in danger of functioning in practice to fuel the regrettable waste of valuable court time this jurisdiction has consumed over the past three decades. This case is an opportunity to streamline and re-define the jurisdiction and to make its parameters clearer and more accessible. That opportunity should be seized.
41. That Primor is thus being over-ruled is important in addressing the first of the questions I have referred to earlier: the source of the power to dismiss 'for want of prosecution'. It makes it difficult to see it can be plausibly contended that, notwithstanding that the law in this regard is being completely overhauled, the Court will not revisit the role of the inherent jurisdiction because, as the Chief Justice puts it in his judgment, 'the issue was not argued'. In fact, it could not have been but clear to the parties that every aspect of the jurisdiction was in play. Were that not the case, it is difficult to see how the decision in Primor could be overturned.
42. In the course of the appeal, the Court raised with the parties a number of questions directed to the proper relationship between the power conferred by O. 122 r. 11, and what is referred to in Primor as the inherent jurisdiction. The parties were directed by the Court itself to the decisions in Bannon, Braithwaite and Sons v. Anley Maritime Agencies Ltd. and Flynn v. Department of the Environment for Northern Ireland & Ors [2006] NIQB 103, and were specifically requested to address the question of whether the status of the decision in Primor as binding authority was affected by the fact that this Court treated the power to dismiss for want of prosecution as being grounded in the court's inherent jurisdiction rather than the provisions of the RSC. Each party fully engaged with that question. The plaintiff said that the Court erred in Primor in treating the inherent jurisdiction as the primary basis for the jurisdiction to dismiss for want of prosecution. The Attorney General was of the view that the reasoning in Braithwaite and Sons v. Anley Maritime Agencies Ltd. resulted in the conclusion that Primor was correctly decided in this respect, as the inherent jurisdiction exists alongside the relevant provisions of the RSC. The solicitor defendants adopted the same position. It is, therefore, incorrect to say that this matter was not canvassed in full before the Court. Finaly, the suggestion that because the error perpetuated by the decision in Primor is 'embedded' it now eludes correction is as remarkable as it is wrong in law. If the error is 'embedded' then it is by Primor that it was so buried, and given that Primor is being jettisoned I am unclear as to why the most fundamental error in the decision is not also capable of review (and see The People (DPP) v. JC [2015] IESC 31, [2017] 1 IR 417 for the overturning of a rule that is as 'embedded' in practice as any rule can be).
43. The suggestion that the Rule is ineffective because there are few steps in an action envisaged by the Rule, and thus that a litigant who is in fact preparing their case may be at risk of having their action struck out is, with respect, based on a false premiss. The term 'proceeding' as it appears in O. 122 r. 11 has a broad meaning, and there is no doubt whatsoever about what that meaning is : 'an act that has some degree of formality and significance and which is done in furtherance of an action ... something in the nature of a formal step being either an application to the court or at least a step ... which is required by the rules' (Allen v. Redland Tile Co. (Northern Ireland) Ltd. [1973] NI 75). This has been found to include the delivery of any pleading, or in the case of summary proceedings, an affidavit. It includes applications for leave to serve interrogatories, for the provision of security for costs, an application to compel delivery of replies to particulars, for judgment in default of defence, the issuing of a motion for discovery, indeed the issuing of a motion to dismiss an action by reason of any procedural default, or the service of a notice of trial. Since the amendment of the RSC to require the delivery of a formal request for discovery before proceeding to seek orders for the making of discovery from the court, the sending of such a letter and, obviously, the delivery of an affidavit of discovery are all procedural steps within the meaning of the Rule. So are the issuing of a motion to dismiss proceedings because of a failure to make discovery, or applications for further and better discovery. Applications to admit proceedings to case management, or for directions, all come within the rule. If a plaintiff has not taken any of these steps for a period of two years, they have at the very least questions to answer as to why that is so.
44. Finally, I should stress that it is not that 'the existence' of the 'inherent jurisdiction' is questioned in any way. It is that the jurisdiction to dismiss proceedings 'for want of prosecution' is regulated by the Rules, which have imposed a condition on its exercise, and that the decision of this Court in cases from Dowd through to Primor itself to ignore that condition was an error which should now be corrected.
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45. Insofar as any aspect of Primor survives it is one that derives from commonsense rather than any analysis in the judgment of the Court: whether it is just to dismiss a case which a plaintiff has failed to prosecute in the manner envisaged by the Rules will always ultimately depend on the relationship between three core variables. These are the total length of time the plaintiff has been inactive (in other words the two years of complete procedural inactivity plus any periods of delay that preceded this), the reason (if any) they have not been proceeding with their case, and the impact on the defendant and the proceedings themselves of the passage of time. That calculation is always going to be case sensitive, and unavoidably, the court must take account of all of the circumstances in properly exercising its discretion. While it is desirable to eliminate as much of the 'noise' around these applications as is reasonably possible, the temptation to reduce the applicable test to a mathematical formula must yield to the reality that cases will present themselves in which it will be wrong to dismiss even a claim that has been characterised by the most egregious of delay.
46. That should, however, be wholly exceptional. Two years is a very long time to pass without any action being taken in a case, and where that period has expired and the court thus has jurisdiction to entertain an application to dismiss generally, the court in determining how to exercise the discretion conferred by the provision should follow the trail laid in all of these cases - Primor included - by inquiring into the three matters I have identified, but bearing in mind the purpose of the Rule, and the fact that it is a matter for the plaintiff to establish that the discretion to permit the action to proceed should be exercised in their favour. To repeat, these are: first, the total period between the initiation of the proceedings and the bringing of the application to dismiss during which the plaintiff has been inactive. Second, the reason the plaintiff has failed to prosecute the case during these periods. Third, the effect of the delay on the defendant and the proceedings themselves.
47. In viewing these, the following general considerations - many of which are reflected in the case law - should be borne in mind:
(i) Order 122 r. 11 is concerned exclusively with procedural steps. A plaintiff can be prosecuting their action without taking procedural steps in the case: by corresponding with the defendants, considering discovery, taking legal advice, seeking to identify witnesses of fact or experts, liaising with those witnesses, taking a reasonable time to await compliance by the defendant with obligations imposed on it by the Rules or Court Order, and the like. Obviously, a plaintiff who is engaged in the foregoing falls to be treated differently from a plaintiff who both allows two years to pass without taking any action in the case, and who is doing nothing else whatsoever to advance their claim.
(ii) One occasionally sees judges dealing with these applications being presented with the prospect of isolating and then adding together relatively short periods of time to identify aggregate delays. This is a waste of resources. The focus is upon whether the case is, as a whole, being prosecuted. The court should be concerned only with a conspectus examination of relatively substantial periods in which nothing is being done to move the case along - chunks of inactivity of less than six months should usually be ignored.
(iii) The courts are well practised at identifying when there is a legitimate explanation for lengthy delays: illness, incapacity, bona fide attempts to settle or to mediate the action and the like. Clearly, in such cases, it is appropriate to view the delay as 'excusable' and to extract such periods from the calculation.
(iv) The focus is then on the total period of delay for which no reasonable or proper explanation has been proffered and whether having regard to that period and its impact on the defendant and the proceedings, it is right to dismiss the case.
48. As to the fourth of these, it is necessary to revert to the point I made at the outset of this judgment. The applications for dismissal which are the subject of this appeal can only fail if the defendants are precluded by reason of their failure to proactively move earlier to dismiss the action, or otherwise to prod the plaintiff into action, and/or the level of prejudice sustained by the defendants as a result of the passing of time is insufficient to justify dismissal. While these issues have provoked differing responses in some of the cases, the decisions of this Court have examined this power in detail and have rooted their conclusions in the inherent jurisdiction. Given that this is not, in fact, the proper root of title for the power, these issues fall to be considered afresh in the light of the text and purpose of the Rule.
49. Insofar as defendant inactivity is concerned, it is certainly the case that a defendant who fails to comply with orders of the court or the provisions of the Rules cannot properly invoke delay by a plaintiff as a basis for dismissing their claim where the plaintiff waits for a reasonable time for the defendant to comply with their obligations before proceeding to agitate that failure by application to court. That is, on any version, an excusable delay. But the suggestion that a defendant who has fully complied with those obligations is precluded from seeking dismissal because they did not move to dismiss sooner, or did not warn the plaintiff of their intention so to do, or did not seek case management or otherwise galvanise the plaintiff to move their own case to trial, is without foundation.
50. Were the power to dismiss proceedings for want of prosecution free-floating and inherent, one can see how it might be said that the inactivity of the defendant should be taken into account: the law would be unbalanced if a defendant could game court processes by exercising an unfettered choice as to when it did or did not move to have a case dismissed without any account being taken of its own conduct in that regard. However, the Rules impose a very significant restriction on the ability of a defendant to have a case dismissed by demanding that nothing be done for two years before the jurisdiction is triggered. That restriction comes with its own trade-off insofar as it incentivises a defendant not to take a step in an action if they do not have to: it is in their interests to leave a plaintiff who is not actively pursuing their case alone. The structure put in place by the Rules is one that leans heavily against a general judicially imposed obligation on defendants to proactively prod a plaintiff into moving their case along.
51. That reflects the elementary fact that it is the plaintiff who brings the defendant to court. If, having done so, the plaintiff wishes to bring their case to trial, they have an ample armoury with which to do so. To speak of a defendant having mutual obligations to advance the case against them which, often, they will not wish to see progressed, and where, more often again, they will not wish to pay lawyers to obtain that privilege, may be superficially comforting, but it is utterly misconceived. There is no mutuality, and to invent such a relationship risks converting a jurisdiction intended to prevent plaintiffs in egregious breach of their procedural obligations from resurrecting proceedings they have chosen to ignore, to one that encourages what will in many cases prove a wholly unnecessary expenditure of the parties' resources and use of court time. I agree with the summary of the correct position - and explanation for it - proposed by Butler J. in Campbell v. Geraghty and ors. [2022] IEHC 241 at para. 44:
'Courts now distinguish between active delay (i.e the failure to take a step positively required) and inactive delay (i.e the failure to intervene by taking a step requiring the plaintiff to act) on the part of a defendant. The rationale for the current approach is that after institution a considerable amount of litigation withers on the vine and simply never progresses. To require a defendant to take positive steps to prod a plaintiff into action in respect of proceedings which, in all likelihood, not going anywhere on pain of not being permitted to rely on the plaintiff's delay thereafter, would be counter-productive.'
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52. It is in assessing prejudice to the defendant that the greatest tension within the case law has manifested itself; many of the earlier decisions required that before a case could be dismissed for want of prosecution, the defendant had to establish serious or significant prejudice. Indeed, this is what the judgment in Primor envisaged. As the jurisdiction to dismiss for want of prosecution has loosened over the past two decades, there are decisions which refer to moderate prejudice, or to a presumed prejudice in a witness action arising from the effect of the passage of time on recollections. Indeed, it seems clear that the effect of the decision of this Court in Stephens v. Paul Flynn Ltd. [2008] IESC 4, [2008] 4 IR 31 is that the 'moderate' prejudice identified by the High Court judge in that case was sufficient to justify the dismissal of a claim where there had been a significant lapse of time in the prosecution of a claim. This mirrors the approach adopted in the very earliest of the cases. Diplock LJ said in McAlpine that delay which justifies dismissal of an action for want of prosecution (as distinct from dismissal for disobedience to a peremptory order of the court) is 'ex hypothesi so prolonged that it involves a serious risk that there will not be a fair trial' (at p. 256) with the result that an order would be made where 'there is a substantial risk that a fair trial of the issues will not be possible' (at p. 258). At the same time, however, proof of concrete prejudice was not required but might sometimes be inferred: 'the length of the delay may of itself suffice to satisfy this condition if the relevant issues would depend upon the recollection of witnesses of events which happened long ago' (at p. 260).
53. It is not to put too much weight on O. 122 r. 11 to take a lead from the period of time which the legislator has identified as triggering the power to dismiss a claim for want of prosecution. To do so while moderating the requisite level of prejudice by reference to the period of inexcusable delay in the prosecution of an action gives effect to the trajectory of the case law over the past twenty years. First, a plaintiff who has engaged in less than two years of total unexplained delay (as would arise if, on the defendant bringing an application under O. 122 r. 11, it emerges that the plaintiff had in fact been engaged in activity to advance their case other than by the taking of procedural steps) should only find that their claim is dismissed if there is defendant prejudice to the level required to ground an application under the O'Domhnaill jurisdiction. Second, a plaintiff who has engaged in two years total delay should only have their case dismissed if there is a serious or significant prejudice in the form of an unavailability of witnesses or other real evidence that would not have occurred had the action been properly prosecuted. Third, a plaintiff who is responsible for unexplained total delay of twice that should expect less tolerance, and it seems to me to be entirely appropriate that after four years or more of unexplained total delay in the prosecution of a case, the court should dismiss the action if it is dependant on oral evidence so that the defendant is exposed to the risk of failing recollections that inevitably accompanies a lengthy effluxion of time.
54. Beyond that, the courts should be firm in their treatment of the conduct of the dilatory plaintiff. We have now reached a point at which the jurisdiction of the courts to dismiss proceedings for want of prosecution has been so prominent in the case law over the past three decades and the concern of the courts as to the systemic impact of delays in the litigation process so regularly repeated and well-known, that the time has come to allow High Court judges a generous power dismiss cases in which there has been five years or more of cumulative and unexplained inactivity in a case (including, necessarily, a solid block of two years of complete procedural inactivity). As matters stand, the case law is firmly moving to a point that acknowledges that there will be situations in which this is the appropriate course of action: where delay has been significant (see in particular Quinn v. Faulkner t/a Faulkners' Garage & Anor [2011] IEHC 103). I am inclined to the view that if the period of total unexplained delay is greater than five years, the court should feel free to dismiss the proceedings unless satisfied that that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational, social or economic disadvantage, or otherwise in progressing their action (as in Guerin v. Guerin [1992] 2 IR 287, [1993] ILRM 243), in very unusual cases in the realm of public law where the proceedings disclose an issue which the public interest demands should be litigated to conclusion (as in Comcast or McKenna v. Farrell [2007] IEHC 343), or where there has been serious misconduct by the defendant in the course of the proceedings. The cases in which extraordinary factors such as these will, effectively, require that the defendant grin and bear the plaintiff's delay will be few and far between, and will arise only in cases where the prejudice to the defendant lies very much at the weaker end of the scale.
55. Finally, it should be stressed that the court is not usually concerned with the merits of the case, only with whether the plaintiff is prosecuting it and, if not, the consequence that should be visited upon that failure. This issue, as it happens, occupied a central place in the arguments of the plaintiff before the Court of Appeal in this case, where he contended that the reference by Hamilton CJ in his judgment in Primor to the necessity to consider 'all the circumstances' of a case entailed an obligation to address the merits and, in particular as the plaintiff saw the matter here, the serious wrongdoing he believed had taken place. This argument was correctly rejected by Power J. in her judgment: as she rightly said, the law does not require the motion judge to hear and determine the merits of a case as if it were a trial. Certainly, if a case can be shown on the basis of the pleadings and undisputed affidavit evidence alone to be so weak that it is unsustainable, or so strong that it is unanswerable, these are factors that, exceptionally, might be taken into account in the exercise of the discretion having regard - in particular - to the nature of the reasons offered by the plaintiff for their failure to prosecute the action. This case fell into neither of these categories.
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56. The underlying facts said to give rise to these proceedings are outlined in the judgment of Hogan J., and for that matter in my judgment in the related case of Kirwan v. O'Leary [2023] IESC 27 at para. 3 et seq.. I will not repeat them here. Applications of this kind should, for the reasons I have explained, be at least usually capable of being dealt with simply (indeed it is telling that the Rules themselves envisaged that they could be dealt with by the Master of the High Court). Here, the factual matrix is defined by three straightforward and indisputable reference points: (a) the relevant events occurred in 2005 and into 2006, (b) the proceedings were instituted on 30 May 2013, and (c) from a point shortly after the initiation of the action, the plaintiff took no steps to advance it until the issuing of the motion giving rise to this appeal in 2018 (the defences having been delivered on 6 December 2013). On any view, O. 122 r. 11 was engaged.
57. I cannot see how it might be thought that there was any excuse for this inactivity. While the plaintiff says he delivered notices for particulars in January 2014, and that these were not replied to, the defendants deny receiving these notices. For my part, I am unimpressed by the plaintiff's reliance on these particulars. Where a litigant is represented by solicitors, the solicitors will have a record of every step taken in an action and where there is a dispute as to whether a step was or was not taken, it is possible for the party who contends that they did so act to prove this by independent evidence, usually - one would have thought - in the form of a record of the transmission of the relevant documents. Where a litigant is self-represented, it is a matter for them to maintain a record of such steps whether by employing registered post to deliver pleadings, by using email, or simply by creating a contemporaneous record of the action in question. The plaintiff here was challenged by the solicitor defendants, who contended that they never received any notice for particulars; the plaintiff was not able to show that this was transmitted apart from his own uncorroborated assertions that they were. In any event, the Rules require a period of inactivity of two years and, irrespective of whether the notices for particulars were served, there was such a period of inactivity. As I have noted a plaintiff is entitled to await a reasonable time before proceeding to court to compel a plaintiff to comply with obligations imposed upon them by Court Order or the Rules. Here, it was open to the plaintiff to move to compel the delivery of replies to particulars, or even to write to the defendants demanding the production of responses to them. If he did not do the first of these for a period of two years or more, he opened the door to inquiry by the court as to whether it should exercise its discretion to dismiss the action. If he did not do the second, this weighs against him in the calculation of where that balance lies upon such an application.
58. Similarly, the claim that the period of inactivity was explicable by reference to the fact that the firm of MJ O'Connor did not send the plaintiff his file until 2017 was specious. The copy file was furnished in April 2010. That was sufficient to enable the plaintiff to formulate his pleadings when he had to do so, and it was sufficient to allow him to have taken what ought to have been the next steps in the case: to bring a motion to compel the delivery of replies to particulars arising from the defences delivered if a notice for particulars had been served (and to proceed to serve a notice for particulars if one had not been served), to seek discovery and to set the action down for trial.
59. Finally, while - belatedly - the plaintiff suggested that the fact that he was being sued for fees affected his ability to proceed with his case, this was shortly and correctly dismissed by the Court of Appeal judgment (where, incidentally, this explanation was tendered for the first time); the fact that legal proceedings in respect of fees were ongoing until mid-September 2010 did not account for the delay that ensued once the proceedings were issued and this did not explain in any sense the failure to prosecute the action (at para. 134). And, in no sense of the term, was the plaintiff 'prosecuting' his action: as Power J. said in the course of her judgment (para. 119), the plaintiff 'did nothing at all to even attempt to progress his claim during those years, preferring instead to leave matters lie notwithstanding the fact that he had made such serious allegations.'
60. In balancing the justice of dismissing the claim against the fairness of allowing it to proceed, there are a number of features of the case which I think should be highlighted. To begin with, this was not a case in which any of the defendants could point to clear or concrete prejudice. No potential witness averred that they could not recall the events in issue, no missing witness was identified, and no real evidence was said to have been unavailable. However, as I have been at pains to emphasise, while it is a requirement of the O'Domhnaill jurisdiction that the prospect of a fair trial be irreversibly compromised, that is not required in an application to dismiss under O. 122 r. 11. The case was one of moderate prejudice arising from the fact of the passage of time in an action likely to be dependant upon witness testimony, and nothing more. This was not, as the solicitor defendants asserted in their submissions, a case in which 'it is not possible to have a fair trial' or, at least, if it was, this was not established.
61. That said, the case falls properly to be dismissed because of the combined effect of three factors. First, the period of total inactivity in the action was, at the time the application to dismiss was issued, over four years. It therefore fell according to the principles I have outlined to be dismissed on the basis of moderate prejudice alone. Second, this was a witness action, in which (as of the date of the issuing of the application) twelve years had elapsed since the events complained of. The Court was entitled to proceed on the basis that the consequent impact on witness recollection would justify dismissing the case. Power J. in my view, framed this correctly (at para. 156 of her judgment): the period passing between 2006 and 2019 was 'inherently prejudicial' and it meant that 'the capacity of witnesses on all sides, but particularly Ms. Connors, to recollect detail as to the events in issue must be regarded as considerably impaired'. This was particularly the case given that Ms. Connors had both detached herself from the practice in 2008 (and was thus, as the solicitor defendants observe, removed from the very context of work) and had experienced a period of illness. She was, it must be stressed, central to the case against the solicitors (and the cases against the various defendants cannot be viewed in isolation from each other). Key to the case against all of the defendants was the claim that she had represented herself to be a solicitor; a claim for which there is no documentary evidence whatsoever. It was moreover central to their action against all defendants that the contents of written documents had been misrepresented.
62. But third, the plaintiff obtained a significant collateral benefit for himself and at the expense of the Buttle defendants by not moving the action along. This is critical to the purpose of the jurisdiction conferred by O. 122 r. 11, for the simple reason that it provides strong evidence that the plaintiff was either intent on never bringing the action to trial, or that he was intent on doing so only when he had to. When the plaintiff sought the adjournment of the creditor action against him by Filbeck Ltd. ('Filbeck') on 5 December 2013 on the basis that he wished to progress these proceedings, he impliedly represented that he would do so expeditiously. At that point in time, Filbeck had obtained judgment in default of appearance on 15 November 2012. In the affidavit sworn by him on 27 May 2013 in support of his application to set aside this judgment on the basis that it had been obtained by surprise and on foot of fraudulent misrepresentations, he averred that it would not be appropriate to proceed with that case until the outcome of the instant proceedings (issued on the same day) had become known. It was on that basis that the President of the High Court made the order which stayed the judgment. The plaintiff was thus in precisely the same position as a party who has obtained the benefit of an interlocutory injunction or undertaking pending trial. As I have said, I would not dismiss this action as an abuse of process. But I would include in the factors that militate in favour of its dismissal the consideration that in delaying as he did, the plaintiff benefited himself in a context in which he had both an incentive to, and did, embark upon what was otherwise an inexcusable delay in the prosecution of the case. If the plaintiff did not deliberately delay the action so as to obtain that advantage, he has not convincingly established this. If he did, this is a significant factor weighing in favour of dismissal.
63. Finally, it should be said that there are no countervailing considerations that require the Court's discretion to be exercised other than in accordance with the guidelines I have proposed. I have already explained why Power J. correctly concluded that it was not appropriate to determine the merits of the case. The plaintiff did not adequately establish that there was anything about his personal circumstances that prevented him from prosecuting his action. There was no proven misconduct by the defendants in connection with their defence of the proceedings. In those circumstances, I agree with Hogan J. that this appeal should be dismissed.
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64. No one could leave the forceful, elegant and erudite judgment of Collins J. and be other than persuaded by his essential point: cases should not be dismissed when it is possible to try them fairly, the obligation of the court is to bring cases to trial within a reasonable time, and defendants who do nothing to progress a case against them should not be rewarded by obtaining the coveted prize of a dismissal of an action against them without a trial on the merits. Yet, the terminus of his judgment is that this case is dismissed without the defendants proving either 'serious prejudice', or that the case was one which the defendant 'could not reasonably be expected to defend', or without proving 'real concrete prejudice'. There are no missing witnesses, no destroyed documents, and no evidence that the person whose oral evidence is relied upon cannot remember the relevant facts or events. Collins J. is, instead, treating the passage of time alone as generating the inference that a case dependant on oral evidence relating to events many years ago cannot be fairly tried. That is precisely what the other members of the Court are proposing for any action in which there has been no procedural activity for four or more years. As I have noted earlier, there is authority from the earliest iterations of this jurisdiction to that effect. Undoubtedly, Collins J. differs from the majority insofar as it would dismiss a case where there had been five years or more of cumulative and unexplained inactivity in a case (including, necessarily, a solid block of two years of complete or near complete procedural inactivity) without proof of any prejudice. That is, indeed, an adjustment of the law but in my view, it is a necessary and wholly appropriate one, which the opportunity to apply one would hope will recur but infrequently. That is also a development that has been prefigured in some of the cases. A plaintiff who has so conducted themselves has forfeited any right to have their case heard and determined.
65. Collins J. also agrees that the defendants should obtain a dismissal even though they stood back and did precisely nothing in the period in question to move the action along. He so concludes because the case law since Primor permits this and because it would be unfair to change the law and apply it retrospectively to the defendants. I venture to suggest that in the absence of any binding decision of this Court addressing this issue, we would be fully entitled to hold the defendants to the law were it determined that they have forfeited the right to have the action dismissed by their inactivity. Without such a binding decision, the defendants took a risk as to the legal consequences of that inactivity.
66. The reason for not holding the defendants to that principle is that in this case it would be intuitively unjust to allow the plaintiff on the facts here (and in particular because of the heightened obligation he was under to prosecute the case) to proceed having regard to his egregious inactivity and the generally deleterious effects of the passage of time. Every member of the Court agrees that this is not affected by the failure of the defendants to take action to prod the plaintiff to move his case along. That failure does not affect the balance of justice. The same applies to any case the disposition of which depends on the resolution of conflicting versions of events irrespective of whether the defendants have been active or inactive. In itself this shows that while pleas that litigation is a two-way street, that defendants have 'obligations of co-operation', that the majority is giving its 'blessing' to defendant inactivity that does not advance the interests of justice, are pleasing and enjoy a rhetorical appeal, allowing a case like this one to proceed simply because the defendants have not prodded the plaintiff into action does not advance the course of justice. I am unaware of any case from any jurisdiction in which a case has been permitted to proceed in analogous circumstances and with similar procedural inactivity simply because the defendant was inactive. That, I think, tells its own story. And, as I have been at pains to explain, the application of O. 122 r. 11 as I have proposed it, significantly restricts the ability of a defendant to move for dismissal. That is the mutuality for which the law has expressly provided.
67. That said, the broader points made by Collins J. as to how cases should be managed and all parties forced to co-operate to that end clearly carry considerable force. The problem is that requirements of that kind cannot be grabbed and used in isolation to remodel the dismissal jurisdiction alone. They can only be introduced as part of an overall reform of the powers of the courts to manage litigation. An obligation of co-operation in bringing a case to trial, if it is to be imposed, must apply to all parties in all situations. It would be wrong to change the law so as to impose such an obligation on defendants so as to require them to expedite a case brought against them without the opportunity to even consider what trade-offs should accompany that new obligation (let alone to implement them). It will be noted that the neighbouring jurisdiction does not merely have an obligation of co-operation in its Civil Procedure Rules, it has far stricter rules of pleading than are applied here, it entertains applications for the trial of issues more frequently, it more readily dismisses claims at an interlocutory stage, and it leans far more generously towards modular trials of actions than is the case in this jurisdiction. Discovery appears to be more regulated, and the rules of evidence (in particular the operation of the rule against hearsay in civil proceedings) are more accommodating of efficiency. As O'Donnell J. (as he then was) observed in LM v. Commissioner of An Garda Siochana [2015] IESC 81 at para. 28, [2015] 2 IR 45, the legal system here continues to manifest a stronger preference for a full oral hearing before a court, and that very frequently is more likely to be in the interests of a plaintiff than of a defendant. This is not the place to ponder which of these approaches is right or wrong: it is simply that the imposition of an obligation of mutual co-operation just to defeat a defendant's dismissal application is wrong if that obligation is not to be carried through to all aspects of court procedure. This Court does not have the power to decree such a general obligation.
68. Finally, I should say that I cannot see how s. 11 of the Court Proceedings (Delays) Act 2024 affects the matter one way or the other. I do not understand how a plaintiff could do nothing to advance their case for five years and then say that their right to have the proceedings concluded within a reasonable time has been breached, and I cannot grasp how a defendant who does nothing to move the case against them along could assert such an entitlement.
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69. To summarise, the reasons I have concluded that the High Court and Court of Appeal were correct in concluding that these proceedings should be dismissed for want of prosecution are as follows. The Court erred in Primor when it rooted the general power to dismiss proceedings for want of prosecution in 'the inherent jurisdiction' of the court. While the court retains an inherent power to dismiss proceedings as an abuse of process, or pursuant to the power recognised in O'Domhnaill, any inherent power the High Court or its precedessors once enjoyed to dismiss proceedings for want of prosecution properly so called has been superceded by the provisions of O. 122 r. 11, which has been on the statute book in one form or another for over one hundred and thirty years. The effect of that provision is that - unless the particular circumstances provided for in O. 27 r. 1, O. 31 r. 21, or O. 36 r. 12 or 13 of the RSC are present or unless the court resorts to the power to enforce its own orders by dismissing the claim of a plaintiff who refuses to comply with them - the High Court enjoys a general jurisdiction to dismiss a claim for want of prosecution only where there has been two years of procedural inactivity in the case. Where (and only where) that requirement is met, the court has a jurisdiction to dismiss the claim on the application of the defendant. In that event, once the requisite period of procedural inactivity is established, the onus shifts to the plaintiff to establish why the court should, in its discretion, allow the action to proceed. In resolving that question the court must identify the total period of inexcusable delay that has passed between the institution of the proceedings and the bringing of the application to dismiss. If the total period of inexcusable delay is less than two years (as would happen if the plaintiff had, for example, been actively progressing the case other than by taking procedural steps in the action) the action should only be dismissed if there is prejudice to the defendant of the kind that would enable the action to be dismissed under O'Domhnaill. If the period is in or around two years, the action should only be dismissed if the defendant would suffer prejudice that is serious and significant. Thereafter, less concrete prejudice will suffice. In a case such as the present where the period of delay, for which no acceptable reason has been proffered, extends from the commencement of the action to the bringing of the application to dismiss over four years later, the fact that the case was dependent on oral evidence, combined with the fact that, at the time of the application to Court, witnesses would have been required to give evidence regarding events that occurred over twelve years earlier, sufficed to strike out the case. The correctness of that conclusion is reinforced by the fact that the plaintiff had obtained a very significant benefit when a stay was granted to him on the judgment obtained by the fourth named defendant, yet he still failed to prosecute his case. This appeal, accordingly, should be dismissed.
[1] At points in his judgment in O'Domhnaill Henchy J. expressly related his conclusions to the court's abuse of process jurisdiction (at p. 157: 'it would be contrary to natural justice and an abuse of the process of the Courts if the defendant had to face a trial') and that is the analysis adopted in analogous circumstances in other jurisdictions. See, for example, the consideration of the power to stay proceedings where a fair trial cannot be secured in Willmot v. State of Queensland [2024] HCA 42.
[2] Order 35 of the General Orders made pursuant to the The Administration of Justice in Ireland Act 1831 contained a broadly similar power to the same effect: '...if plaintiffs did not proceed on appearances entered within two years, such appearances should be considered as not entered, and not to be proceeded on, and that if appearances were above one year entered before filing a declaration, the party should enter a rule for liberty to proceed...'.
[3] The English Orders (made pursuant to the Common Law Procedure Act 1852) imposed an obligation to serve a notice of intention to proceed (General Order 176) but did not incorporate the further obligation to apply for liberty to proceed after two years that appeared in their Irish equivalent.
[4] Kerry County Council v. Gun Browne should not be understood as authority for the proposition that O. 122 r. 11 does not apply to summary proceedings. As the Report shows, the inherent jurisdiction arose because the 1926 Rules did not contain any provision enabling dismissal for want of prosecution. The fact that the 1905 Rules continued to operate as evidence of practice and procedure for the purposes of the Courts of Justice Act 1924 does not appear to have been adverted to, and was not clearly explained by this Court until 1969 (see fn 5).
[5] The 1905 Rules ceased to be in force as such upon the enactment of the Courts of Justice Act 1924, but the effect of s. 22 of that Act was that those Rules represented a statement of, and evidence of the practice and procedure formerly existing in respect of the jurisdiction transferred to the new courts, and that jurisdiction was, under s. 22, to be exercised as nearly as possible in the same manner in which it had been previously exercised when the 1905 Rules were actually in force. That was for as long as there was no rule introduced under the 1924 Act referring to the practice and procedure in question (The People (Attorney General) v. Bell [1969] IR 24, 45 (per Walsh J.). The Rules of the High Court and Supreme Court 1926 made no provision for dismissal for want of prosecution of a plenary action, and the power provided for in O. 64 r. 15 thus continued to apply until those Rules were formally annulled in 1961, and replaced in 1962.
[6] '... to a perceptive foreign observer ... the existence of rule-making authorities, such as they Rules Committee of the Supreme Court,... provides a typical example of the exercise of judicial power in England and constitutes a characteristic feature of the English legal system' (Jacob at p. 34).
[7] '... from the inherent jurisdiction of the court to regulate its proceedings, there has been created and developed the powerful and remarkable rule making authority, the Rule Committee of the Supreme Court' (id.).
[8] This was by reference to the old version of O. 19 r. 28. The new (2023) version of O. 19 r. 28 is more comprehensive.