AN CHÚIRT UACHTARACH
THE SUPREME COURT
S:AP:IE:202300001
Dunne J.
Charleton J.
O'Malley J.
Between/
BRENDAN KIRWAN
Plaintiff
-and-
MARGUERITE CONNORS TRADING UNDER THE STYLE OF 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
Respondents
Judgment of Mr. Justice O'Donnell, Chief Justice delivered on the 30th day of May 2025.
1. This appeal is the first occasion since the passage of the 33rd Amendment of the Constitution on which this Court has had an opportunity to consider the test first outlined in Primor v Stokes Kennedy Crowley [1996] 2 IR 459 ("Primor") in which this Court held that the courts have a jurisdiction to strike out proceedings for want of prosecution and/or delay, and the relationship between that jurisdiction and other provisions in which a plaintiff's claim might be dismissed without proceeding to a full hearing. The appeal was originally heard by a panel of five, and then reargued before an expanded panel of seven. This reflects both the importance of the issue, and the desirability of seeking an authoritative statement of the circumstances in which a case may be dismissed by a court for want of prosecution.
2. The issue is important because the Primor test is perhaps one of the most often invoked strands of jurisprudence in the High Court and on appeal to the Court of Appeal. Almost inevitably in consideration of an issue such as this, there are diverging views between members of this Court on certain aspects of the jurisprudence. There is, however, a high degree of consensus, indeed unanimity, on a number of important issues and a significant degree of congruence even on those issues on which the Court diverges. In this judgment I seek to identify the areas of agreement, and divergence, and in the latter case explain my reasons for coming to the conclusions which I do. For these purposes it is not necessary to repeat the facts of the case or its procedural background. I gratefully adopt the detailed account of the facts set out in the judgment of Hogan J. and Murray J. and will not repeat them here.
3. The essential factual background here is that the events complained of in these proceedings occurred in 2005/2006. Proceedings were commenced by the Plaintiff and Appellant Mr Kirwan in 2012 ("the 2012 Buttle action"), and 2013 ("the 2013 'combined' action") and the commencement of those proceedings was instrumental in securing a stay on a judgment obtained by Filbeck against the Plaintiff in 2012 in the sum of €1,056,936 which were stayed pending the determination of the 2012 and 2013 proceedings. It does not appear that the Plaintiff can demonstrate that he took any significant step procedural or otherwise in the proceedings, until August 2018 when the Buttle Defendants brought a motion seeking to have the 2013 proceedings dismissed for want of prosecution pursuant to Order 122 Rule 11 of the Rules of the Superior Courts, and/or the inherent jurisdiction of the Court. In November 2018 Mr Kirwan issued cross-motions, and in the same month the solicitor Defendants issued a motion seeking to have the proceedings dismissed for want of prosecution.
4. The High Court dismissed the proceedings and applying the Primor test found that the delay was inordinate, and inexcusable, and that the balance of justice favoured the dismissal of the proceedings because inter alia the solicitor Defendants had suffered prejudice in the retirement from the solicitor's practice of the first named Defendant, and the lapse of time, and the Buttle Defendants had suffered prejudice in that Filbeck had been unable to execute the judgment it obtained against Mr Kirwan because of the existence of the proceedings. Certain ancillary orders were also made by the High Court.
5. There were three orders under appeal before the Court of Appeal concerning the dismissal of the 2013 court proceedings, the amendment of the order made in those proceedings, and the orders made in respect of the 2012 action. For present purposes it is sufficient to focus on the core appeal. The Court of Appeal (Power J.) upheld the decision of the High Court that the delay was both inordinate and inexcusable, and that the balance of justice favoured the dismissal of the proceedings. In this respect Power J. was satisfied that the High Court was correct to find that there was prejudice to both the solicitor Defendants and the Buttle Defendants.
6. On 16 March 2023, this Court granted the Plaintiff leave to appeal: see Kirwan v Connors [2023] IESCDET 34. As already mentioned, having heard the appeal, the Court concluded that the practical importance of it warranted the reopening of the oral hearing for an expanded panel and the Attorney General was also invited to participate in the appeal.
7. Judgments are being delivered in this case by three of my colleagues (Hogan, Murray and Collins JJ.) which take somewhat different approaches. It will be necessary to discuss those differences and set out my view upon them. However, the differences of approach, and the discussion of them, should not distract from the recognition that all members of the Court are agreed on three important matters: first, that the experience of the 30 years since Primor was decided has shown that the test has not achieved the objectives for which it was devised; second, that it would be highly desirable that the Rules of the Superior Courts should be amended to include specific provisions setting out the circumstances in which a case may be dismissed for want of prosecution; and third, that whatever approach is taken, whether amended and adjusted Primor (Hogan J.), or by reference to Order 122 Rule 11 (Murray J.) or existing Primor jurisprudence (Collins J.) the result is the same: both the High Court and Court of Appeal were correct to dismiss both the 2013 and 2012 proceedings.
8. Hogan J., in the judgment he delivers, considers that Primor was an exercise of the Court's inherent jurisdiction and should be refined and adjusted in the light of experience in the 30 years since it was first adopted. Murray J. for his part considers that the law took a wrong turning in principle in Primor in adopting without analysis the approach of the courts of England and Wales commencing effectively with the Court of Appeal decision of Allen v Sir Alfred McAlpine [1968] 2 QB 229 and endorsed by the House of Lords in Birkett v James [1977] 3 WLR 38, and which held that the Court had an inherent jurisdiction to dismiss proceedings for want of prosecution on the grounds of inordinate and inexcusable delay. Murray J. points out that there was no equivalent in England and Wales of the specific provisions of Order 122 Rule 11, the significance of which, he considers, has not been appreciated in the subsequent Irish jurisprudence.
9. In Murray J.'s view, whatever the position prior to the adoption of Order 122 Rule 11 or its predecessors, the Rule must be taken to be an example of legislation occupying the field, as it were, and leaving no remaining space for the inherent jurisdiction. This is an example of a principle explained by (John) Murray J. in G McG v DW (No. 2) [2000] 4 IR 1 page 27 ('G McG'), quoted at paragraph 21 of (Brian) Murray J.'s judgment. In G McG what had commenced as nullity proceedings had become in effect proceedings for the recognition of foreign divorce. The Family Law Act 1995 permitted courts to make declarations as to status, and permitted, but did not require, the Attorney General to be joined, but if the Attorney General was joined, the declaration was binding on the State. A declaration of recognition of a foreign divorce was made in the principal proceedings to which the Attorney General was not a party. G McG concerned the application of the Attorney General to be joined to the proceedings after their conclusion to advance an appeal which, it was argued, was within the inherent jurisdiction of the courts. Both the High Court and Supreme Court held that the specific regulation by legislation of the circumstances in which the Attorney General could be made a party to the proceedings precluded any argument that there was an inherent jurisdiction to join the Attorney General, as he had sought, subsequent to the conclusion of the case.
10. Applying this analysis, Murray J. would find that Order 122 Rule 11 is the exclusive method under which a case can be dismissed for want of prosecution for general delay, at least where the O'Domhnaill v Merrick [1984] IR 151 test is not met, in that it has not been established that a fair trial cannot be provided, or there has been an abuse of process.
11. It is important to observe that the difference of opinion relates to the source of the jurisdiction to dismiss for want of prosecution. For Hogan J. it is both Order 122 Rule 11 and the inherent jurisdiction, whereas for Murray J., it is exclusively Order 122 Rule 11. However, there is a high degree of agreement, almost total, as to how that jurisdiction (whatever its source) should be exercised. Murray J., taking the view that Order 122 Rule 11 is the source of the jurisdiction to dismiss for want of prosecution, nevertheless draws on a number of factors identified in the Primor jurisprudence which should be applied in the exercise of the jurisdiction. Hogan J. for his part considers that Primor was correct in identifying the inherent jurisdiction as the source of the power to strike out for inordinate and inexcusable delay, but would reformulate the test in a stricter, and it is hoped more efficient terms. Notably he considers that the jurisprudence should have taken into account the existence of Order 122 Rule 11, and in particular the guidance that it provides that an action could be dismissed under that jurisdiction where there had been procedural inactivity for more than two years.
12. There is, therefore, a degree of convergence from these different starting points and an end point which as I understand it, is almost identical.
13. Nevertheless, it is necessary to express some view on the issue dividing to members of the Court. On this issue, notwithstanding the impressive analysis contained in the judgment which Murray J. delivers, I would agree with Hogan J., as indeed as understand it would the other members of the Court. It is, I think, unnecessary to set out my reasons in elaborate detail. First, I doubt that it is open to the Court to come to such a radical conclusion on this appeal, in which the issue was not argued; second, the principle in G McG applies most obviously in the case of primary legislation, and must, in my view, be approached with some caution, particularly when considering the inherent jurisdiction of courts to regulate their own procedures, and delegated legislation in the shape of Rules of Superior Courts, which is something of a special case; third, and in any event, I would not read Order 122 Rule 11 as expressing a complete delineation of the jurisdiction of the courts to dismiss for delay; fourth, I do not think that the examples of the jurisdiction to dismiss appeals for want of prosecution, and the jurisdiction identified in Barry v Buckley [1981] IR 306 to dismiss proceedings as bound to fail, can be distinguished so readily. Rather, in my view they are examples of an inherent jurisdiction co-existing with specific rules. By the same token, I would see the jurisdiction identified in O'Domhnaill v Merrick, and the abuse of process cases, as part of a continuum, rather than existing in entirely separate compartments. If so, this reinforces my conclusion that Order 122 Rule 11 cannot be seen as occupying the field and expelling the inherent jurisdiction. Finally, I think that it is not irrelevant that Primor has been a cornerstone of the jurisdiction since established in 1996, and has become an established part of the landscape and I do not think it can or should be extirpated now, especially since that could not lead to any different result on the question of the specific test to be applied.
14. On the separate question of the relevance of defendant inactivity, I agree with Hogan and Murray JJ. and respectfully disagree with Collins J. The courts must hold the scales equally between the plaintiff and the defendant, but that does not mean that they are to be treated as the same when they are not. In particular, they are not co-adventurers in litigation with the same interest in bringing it to conclusion. The essential structure of proceedings involves a plaintiff invoking the jurisdiction of the court to summon the defendant requiring them to answer a claim. In my view, the plaintiff has an interest in, and responsibility for, bringing that claim to trial. The same cannot be said of a defendant who will obtain nothing from success in the proceedings other than being restored to the position they were in prior to the commencement of those proceedings. Furthermore, it is a well-known feature of litigation, that many more actions are commenced than proceeded with. Litigation is an expensive activity, and not just in financial terms. There are many reasons why a plaintiff may commence proceedings but not proceed with them. I think a defendant is not required to spend time, energy and resources on a claim which may never be heard and defendants should not be criticised for doing no more than is required to respond to a claim, and to be ready to meet it if and when it is prosecuted. In this regard I agree with the passage from the judgment of Butler J. in Campbell v Geraghty [2022] IEHC 241 set out at paragraph 51 of the judgment of Murray J.
15. There may be cases in which there may be something which goes beyond silence and/or inactivity and reaches the level of acquiescence on the part of a defendant in the plaintiff's delay, or indeed positive encouragement to the plaintiff to refrain from prosecuting a claim. If so, that would certainly be a relevant factor. However, unless the defendant's conduct reaches that level, I do not think it is a valid answer to a complaint that a plaintiff has done nothing to prosecute a claim for a period of two years or more, to say that the defendant did not do so either. The clue here is in the name: the defendant's function is to defend a claim which is brought to court.
16. All members of the Court are, however, agreed that wherever the jurisdiction is located, the Primor test has not been fully effective in achieving the object for which it was devised, and more over has given rise to difficulties which should be capable of being avoided by a more refined test. The most obvious symptom of the difficulty is the fact that Primor claims in the High Court have become quite protracted, involving detailed debates, sometimes contained in extensive affidavits, requiring considerable court time, and sometimes extensive judgments. These in turn lead to appeals, where the Court of Appeal can often take a different view to the trial judge. The end result can often be unsatisfactory and protracted proceedings on affidavit, with unpredictable results, which particularly when they result in a refusal of the application for dismissal of the proceedings, have the perverse consequence of adding significantly to the delay in getting the proceedings to a hearing.
17. There are a relatively small number of factors of obvious relevance to any jurisdiction to dismiss for want of prosecution and which tend to be rehearsed at some length in any Primor/Order 122 Rule 11 application. These are, the length of time since the events the subject matter of the proceedings; the period or periods of inactivity in the litigation; the excuse, if any, offered; any question of defendant's acquiescence in or encouragement of delay; whether the case is dependent on oral evidence; whether extensive documentary evidence is available; and the extent of any prejudice alleged to be suffered by the defendant by reason of delay over and above the general assumption that the passage of time means that evidence becomes degraded, less certain, clear, persuasive and reliable.
18. The Primor test sought to take account of all these factors, but has proven unsatisfactory, as it has tended to call for an over-refined, detailed, and protracted assessment of such factors before deciding whether a case may or may not be dismissed. In particular, it is apparent that the test involves consideration of matters which are necessarily of assessment rather than precise measurement, and open to subjective judgment on which judges may reasonably differ is the delay so long as to be inordinate, are the reasons proffered a sufficient excuse, and, critically, where does the balance of justice lie.
19. This last factor, which in practice is required to carry most of the load of the test (there rarely being any dispute that the delay is inordinate and only limited debate on whether it is excusable), is particularly difficult. By definition the assessment is made in advance of the trial before any determination of the merits, and through the necessarily limited and partisan perspective of rival affidavits seeking to emphasise some one or other factor found decisive in the previous case law.
20. If that assessment is approached on an assumption that the claim is one which would, or could succeed, then it might be said it is a substantial step to nevertheless dismiss it for procedural inactivity, particularly when the plaintiff in resisting the application will loudly protest their commitment to advancing the case with expedition. To dismiss a claim which would or could succeed, may deprive a plaintiff of a remedy for a wrong done, and at the same time permit a wrongdoing defendant to escape liability. Even if the fault can be laid at the door of a professional advisor who may have insurance, that is a less than satisfactory outcome. The wrongdoing defendant still escapes liability, and what may often be a dubious claim becomes converted into a strong claim against a legal advisor who will find it very difficult to persuade a court that the claim which they have initiated, had no real prospects of success. The dispute is not ended, simply transformed unsatisfactorily. Litigation does not end, it continues in another form against another party. Looked at this way it might be said that it would require something substantial in the shape of an obvious injustice to the defendant caused by delay, to tip the scales in favour of dismissal.
21. But that scenario is unduly simplified. There is normally little difficulty in advancing and resolving those claims which can be truly said to fit the stereotype of the meritorious claim against the wrongdoing defendant, but there is no simple binary division between good claims by wronged plaintiffs or exaggerated or unjustified claims against innocent defendants. The justice system exists to locate such cases on that spectrum, but all cases have in common the fact that they should be advanced with at least reasonable expedition and none of them improve with age. The very existence of the Primor jurisdiction and the subsequent experience shows an increased appreciation of the fact that delay in and of itself is inimical to the just resolution of disputes. It is noteworthy that Primor applications are a creature of the jurisdiction of the High Court: it is rare that applications are brought in relation to Circuit Court litigation. In such cases the balance between the amount of time and effort invested, and the benefit obtained, will tend to lead to a conclusion that it is preferable to either leave the case dormant, or bring it to trial. The jurisdiction is only justified in cases where they take a considerable time at trial, and where therefore it is advantageous to incur the expense and potential delay of bringing a motion to dismiss for want of prosecution. If not dismissed, and brought to trial, there is a considerable pressure to settle the claim because of the combination of the costs which have been and will be incurred (and which may not be recoverable even if the case is successfully defended). The difficulty of assembling the evidence and the material necessary for a full defence, and the reality that the distance in time from the events the subject of the case, will normally give rise to greater uncertainty and therefore risk. But a defendant who settles a case at perhaps a fraction of its asserted value because that is the commercially sensible thing to do, will leave court with a justifiable sense that something less than justice has been done. Much of the case law is an attempt to make some assessment of where the balance lies in any individual case, and each careful judgment of the High Court and/or Court of Appeal assessing and weighing all the factors becomes one more marker on the course to be navigated in any subsequent case and often adding to the length of the hearing and, often, the judgment.
22. From the perspective of the lawyer, litigation may be normal and routine, but not even the most obtuse lawyer could think that it is a beneficial activity in itself. It provides a method for dealing with disputes which cannot otherwise be resolved by other less stressful and expensive means, and as a method of doing so, is certainly preferable to the alternative, but it can be trial by ordeal which exacts a heavy price from its participants. A claim left hanging may be just another file in an office to the jaded lawyer, but it is a constant worry to a defendant creating a risk that cannot be resolved, or even easily measured and provided for, and casting a shadow over a business or a career. Justice may require that a claim of wrongdoing be advanced and adjudicated upon, but it also demands that it should be resolved within some reasonable timescale by reference to the event the subject matter of the proceedings. Litigation is a spectrum running from meritorious claims to speculative and unmeritorious, but it all has in common the fact that it should be dealt with if not promptly, then at least without delay which can properly be described as inordinate and inexcusable.
23. The weakness of the Primor test as revealed by subsequent experience is firstly, that it involved a balance of a number of factors giving rise to a necessarily subjective and contestable conclusion, resulting in lengthy hearings and appeals. Second, it proceeded on an assumption that the jurisdiction was an interference with a right of access to court, and which required particular weighty justification, and therefore tended against dismissal of even very stale claims. Third, the test did not recognise, and therefore did not give sufficient weight to, the fact that lapse of time alone is harmful to the administration of justice, and should be a sufficient basis in itself for dismissal of proceedings.
24. In my view, little weight should be given to the idea that the Primor or Order 122 Rule 11 jurisdiction is an interference with a right of access to courts. The derived right of access to courts is a right of access to courts to litigate claims. A system of administration of justice with scarce resources must set rules for the conduct of claims which, if not unreasonably strict or difficult to comply with, are perfectly permissible. The claimant who brings proceedings and does not prosecute them has been afforded full access to the courts to litigate their claim and has not done so. In Slattery and Ors v An Taoiseach and Ors [1993] 1 IR 286, the Plaintiffs had been refused liberty to serve short notice of motion during a vacation, on grounds that they should have moved earlier and had not explained their delay. Their appeal to the Supreme Court was dismissed on the basis that the claim could not succeed. In the course of his judgment McCarthy J. said:-
"They argue that they have been denied access to the courts. They have not. Within three days of issuing the summons, they were heard in the High Court; two days after the High Court ruling, they were heard in this Court. The fact that neither court granted leave to serve the notice of motion is quite irrelevant to the issue as to whether or not they had access to the Courts. They did; they availed of it and, having failed, cannot be heard to complain."
25. Once it is accepted, as it must be, that the existence of rules on dismissal of a claims for want of prosecution are not themselves an impermissible interference with the right of access to courts to litigate claims, then the application of those rules does not raise any constitutional issue and the Constitution does not require any presumption in favour of the claim or against dismissal.
26. In my view, the law should recognise the fact that passage of time is important in and of itself, and can justify dismissal of a claim, without more. Greater weight should be given to the factor of the passage of time. this will also have the merit of simplifying the test to be applied. I agree with Hogan J. that two years of inactivity is a critical milestone. I would apply the tests set out in the judgment of Murray J. at paragraphs 53 and 54 and with which I understand Hogan J. agrees. That means that:-
(i) until the point is reached where there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under the O Domhnaill v Merrick jurisdiction.
(ii) After two years of total inactivity, a claim may be dismissed for want of prosecution. It is likely that a claim will only be dismissed at this point if in addition to the period of inactivity a plaintiff can point to some additional prejudice or other factor pointing towards dismissal. If a court does not dismiss the claim, it would be entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal;
(iii) If there has been four years total inactivity then the claim should be dismissed if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably accompanies a long effluxion of time, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial. Conversely, if there are factors such as specific prejudice to the defendant that will strengthen the case for dismissal, but it should be emphasised that it is not necessary to point to any such factor: passage of this amount of time is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.
(iv) Finally, where there has been a cumulative period of complete inactivity for more than five years, I agree with Murray J. that the court should have a generous power to dismiss cases, and the court should feel free to dismiss the proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational social or economic disadvantage, or otherwise in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated to conclusion or where there has been serious misconduct by the defendant in the course of the proceedings. I agree with what Murray J. says about such cases at paragraph 54 of his judgment.
27. It should, however, be recognised that the test is not mechanical, and it remains a matter for judgment, and it will remain conceivable that individual judges may take different views in borderline cases. This is an unavoidable and necessary feature of a legal system. The purpose of the jurisprudence should not be to attempt to dictate the outcome of the marginal cases but instead provide sufficient guidance to allow most cases to be resolved without protracted hearings and lengthy appeals. This refinement of the Primor test should permit more applications to be decided speedily and provide a structure for more finely balanced claims to be focussed on the key issues. It is important both to recognise the significance of lapse of time in relation to the jurisdiction, and highlight that factor in the test to be applied. In any other field of activity, two years is a very long time to do nothing. The administration of justice should not be different.
28. I have read in draft the judgment Collins J. delivers today concurring as to the result, but departing from the reasoning of both Hogan J. (for the majority) and Murray J. Since the objective of my judgment is to identify clear principles for future application, I do not wish to prolong the debate or lengthen the judgment by an extended analysis of the points at which I diverge from the careful and forceful judgment of Collins J.
29. In summary, however, I should say that I fully appreciate, I hope, the force of Collins J.'s judgment, the arguments deployed, and the sentiment behind it. It is important, that the jurisdiction to strike out should not become a battleground which gives an undue advantage to well-resourced but perhaps unmeritorious defendants over plaintiffs who may have good claims notwithstanding the dilatory way in which they were pursued. Since here the jurisdiction is triggered by inactivity on the part of the plaintiff, it does not necessarily follow that the defendant can overwhelm a poorly resourced plaintiff, but it is nevertheless important that courts retain a degree of flexibility and should remain astute to ensure that justice in its broadest sense is done, and Collins J.'s judgment is a valuable corrective in this regard.
30. At the level of principle, the thrust of Collins J.'s disagreement, is I think encapsulated at paragraph 13 of his judgment where he observes that the new test "means that the courts may dismiss claims which may yet be fairly tried". This encapsulates the objection in a forceful and pithy manner, bolstered as it is by quotations from judgments both in this jurisdiction and the neighbouring jurisdiction. But, as in so many areas, the legal answer is that it is more complicated than that. The jurisprudence cannot be reduced to a choice between a disciplinary or a fair trial approach. Unless a very broad interpretation is adopted of the concept of a claim being "fairly tried" the courts have (and Collins J. would in this case), dismiss claims without it being established that they are incapable of being fairly tried. On my analysis at least, it is apparent that the jurisprudence shows that culpable plaintiff inactivity is a significant part of the calculation, and that courts under this jurisdiction, focus correctly on what it is the plaintiff ought to have done and failed to do. Cases where claims are dismissed for want of prosecution can be understood as a determination that it is not fair to the defendant to require them to defend the claim because of the inaction of the plaintiff.
31. One reason for this, as I touched on above, is what is involved in any litigation. If all claims were costless scientific inquiries into the merits of particular action or inaction on the part of a defendant and could be determined with forensic certainty, and if all such claims were destined to go to trial, and that trial was a laboratory experiment which could be conducted under precisely the same conditions, notwithstanding the lapse of time involved, then it would make sense to adopt the implicit test suggested as being decisive. However, the development of the jurisprudence recognises the fact, that many more claims were commenced than ever resolved and that such claims are commenced for a range of reasons and not merely because a plaintiff considers that they have been injured by reason of the wrongdoing of a defendant. Many of the claims that do proceed may be compromised. The decision to compromise a claim involves calculation of the costs involved, the resources that may be required, the availability and enthusiasm of witnesses. Many if not all could be better and more accurately resolved if heard and determined close to the events and with all available witnesses with clear recall, but a court called upon to do justice between the parties will do so on the evidence that the parties are able to marshal, and on the balance of probabilities. But this does not mean that it is fair to the defendant to require to face that process under circumstances where a plaintiff has been guilty of delay which has been inordinate or inexcusable. Indeed, once it is recognised that delay is in itself prejudicial, as it must be, then the binary choice posited by Collins J. disappears, as does the simplicity of the test posited.
32. When there is inordinate and inexcusable delay, and such a claim is dismissed because of the absence of a critical witness, it is dismissed because the plaintiff ought to have advanced the claim more speedily, and it is unfair to the defendant that it must face a clear disadvantage because of the plaintiff's inactivity. The unfairness to the defendant is bound up with the default of the plaintiff.
33. Similarly, the proposition that who has received a litigation benefit or advantage, whether in the shape of a stay on a judgment, or the grant of an interlocutory injunction, is under a particular duty to proceed with expedition, focusses on what the plaintiff ought to have done and failed to do, rather than any question of whether the claim can be "fairly tried". It plainly can, in the sense that the court could do justice between the parties on the evidence which would be adduced, but it is dismissed because it is sufficient that the plaintiff ought to have proceeded with greater expedition and did not do so. Again, it can be said that this is in some way unfair to the defendants, but if so, much of the contention disappears, particularly if it is recognised, as it must be, that delay necessarily is prejudicial to or unfair to a defendant
34. Finally, the points at which I depart from the analysis of Collins J. are similar to those advanced in the judgment of Mr Justice Murray. However, as already explained, I depart from the latter's reasoning in respect of the existence of an inherent jurisdiction to dismiss for want of prosecution, and the fact that I do not consider it is displaced by the provisions of Order 122 Rule 11. When I said at paragraph 13 of this judgment that I did not think Primor can or should be extirpated now, I hope it is clear that what I meant by this reference is to refer to the inherent jurisdiction recognised in Primor, rather than the particular Primor rules themselves. The significance of this case is that delay in itself must be recognised as the primary factor in considering applications for a dismissal from want of prosecution. The approach to be applied henceforth is that set out at paragraph 26(i)-(iv) above.
35. It remains to apply this analysis to the present case. I agree with the approach of both Hogan and Murray JJ. This is a case which is properly characterised as one of inactivity in the litigation of more than 4 years. The defendants cannot point to any specific or concrete case of prejudice. The case is, as Murray J. put it at paragraph 61, one of moderate prejudice arising from the fact of passage of time in an action likely to be dependent on witness testimony. The events the subject matter of the proceedings occurred 12 years before the application to dismiss was issued and if not dismissed could not reasonably have expected to be heard for some time later. Finally, and significantly, this lapse of time and delay occurred in circumstances where the plaintiff received a collateral benefit for himself by not prosecuting the proceedings. The stay granted and the existence of the proceedings meant that the plaintiff was insulated against a very substantial judgment obtained against him in November 2012. The inactivity in these proceedings was enough, in my view, to justify a court in dismissing the proceedings absent some significant countervailing consideration. This factor confirms and adds weight to that conclusion. There was an onus on the plaintiff to advance these proceedings. He did the opposite. I would dismiss the appeal.