Strike out for delay: impact of the Supreme Court decision in Kirwan

The test for striking out proceedings for want of prosecution / delay in prosecution was refined and simplified following the Supreme Court decision in Kirwan v Connors [2025] IESC 21 (“Kirwan”) last year.  In this update, we look back at the procedural change brought about by Kirwan, together with some subsequent cases reflecting its immediate impact. The Primor Test

Prior to Kirwan, the leading Irish judgment in respect of strike out for want of prosecution was Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 (“Primor”).  In Primor, the Supreme Court set a three-limbed test to be applied when considering an application to dismiss for want of prosecution:

• Has there been inordinate delay?
• Has the delay been inexcusable?
• If yes to both these questions, the Court must consider whether the balance of justice is in favour of dismissal.

The onus is on the defendant to establish all three limbs of the test.

Prior to the Kirwan decision, the Irish courts approached applications for strike out for delay with caution, focussing on the particular factual context of each case. In Kirwan, the Chief Justice of the Supreme Court acknowledged the Primor test did not afford due recognition to the fact that delay alone can be “harmful to the administration of justice, and should be a sufficient basis in itself for dismissal.” The Chief Justice also rejected the suggestion that dismissing proceedings for delay in prosecution interferes with access to justice, stating that 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.”

Refined test

The Kirwan decision adjusts the focus of the Primor test to give greater weight to the relevant lapse of time, as follows:

• where there has been inactivity for less than two years, a claim should only be dismissed if the claim constitutes an abuse of process, or there is prejudice to the defendant;
• where there has been inactivity for two or more years, a claim may be dismissed for want of prosecution if, in addition to the period of inactivity, there exists some additional prejudice or some other factor pointing towards dismissal;
• where there has been inactivity for four years, a claim should be dismissed if it is dependent on oral evidence unless there are compelling reasons why the claim should not be dismissed; and
• where there has been complete inactivity for a cumulative period of five or more years, the court should dismiss the claim 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”.

The Chief Justice acknowledged that in finely balanced cases individual judges may reach different conclusions in their application of the test, that is, the test is not intended to be “mechanical”.

Impact of Kirwan

The Kirwan test has already been applied by the High Court in a number of cases.

In the case of Nowak v The Institute of Chartered Accountants in Ireland [2025] IEHC 408, a delay of approximately eight and a half years and the absence of any “pressing exigency of justice” that would permit the case to proceed to trial, was sufficient to have the action dismissed. The High Court also applied the refined test in the case of Dennis Guilfoyle Developments Ltd v. Wardrop [2025] IEHC 414 to strike out the proceedings in similar circumstances.

Subsequent judgments of the High Court elaborate on how the Kirwan test is to be applied in practice. In Murphy v Aer Lingus Group plc & Anor [2025] IEHC 589 (“Murphy“), the court allowed the Defendants’ application to strike out the proceedings on the basis of delay where the proceedings had been commenced over 12 years previously. The court noted it was “very conscious” that in Kirwan the Chief Justice cautioned against the application of the test in a “mechanical” manner, and made clear that the court was applying its judgment to the particular facts, guided by Kirwan principles.  On the facts, the court found that the cumulative delay for which the Plaintiff was exclusively responsible was over seven years and that there had been no acquiescence by the Defendants.  Absent a “pressing exigency of justice” requiring the case to continue, the court was satisfied to dismiss the proceedings.

In Doyle v Commissioner of An Garda Síochána & Ors [2025] IEHC 591 (“Doyle“), the proceedings were dismissed due to significant delay by the Plaintiff (the proceedings were commenced in 2003 and a Statement of Claim was not delivered until 2018). The court addressed two points in relation to the practical operation of the Kirwan test:

1. whether it is sufficient that there had been a two year period of inactivity at some point during the proceedings or whether a two year period of inactivity must immediately precede the application to dismiss for want of prosecution; and
2. whether, in order to fall within categories (3) or (4) of Kirwan, the period of four or five years must immediately precede the application to dismiss.

On the first question, the court held that “such a rigid or absolute rule would be inconsistent with the exercise of an inherent jurisdiction and with the need to take into account the overall prosecution of the proceedings.” This issue has been considered, subsequently, in Homes of Heritage Limited v Cunningham & Ors [2025] IEHC 724.  In Homes of Heritage, the court observed that there is some support in Kirwan itself that a period of two years delay is the absolute minimum period on which to base any application to strike out proceedings for want of prosecution / delay in prosecution, the court ultimately found that “the total inactivity must be more significant than the period immediately preceding the issuing of the motion”.

On the second question, the court held that there does not need to be a solid period of four or five years of total inactivity for a case to fall within categories (3) or (4) of Kirwan (so it is not necessary that a four or five year period of inactivity is established prior to the court making an order to strike out).

Separately, in O’Kelly [As Personal Representative of the Estate of O’Kelly] v. McGovern [As Personal Representative of McGovern] [2025] IEHC 704 the High Court considered the Kirwan test in the context of an appeal against a default judgment issued by the Circuit Court, concluding that in the context of an appeal, the Kirwan test should be applied “with greater stringency“.

Other recent developments

The decision in Kirwan reflects the recent trend towards making litigation in the Irish courts more efficient and expeditious. This includes the passing of the Court Proceedings (Delays) Act 2024 (the “2024 Act”) in April 2024. The 2024 Act, which is currently awaiting commencement, creates a statutory right to the conclusion of court proceedings within a reasonable time and provides for a declaration and, where appropriate, compensation in cases where parties experience undue delays in the justice system.  Arrangements to operationalise the requirements of the 2024 Act are in the process of being finalised.[1] Most recently, the General Scheme of the Civil Reform Bill was published on 6 January 2026. This envisages wide ranging reforms, including making provision for deemed discontinuance where an action has not yet been set down for trial and no steps have been taken in the proceedings for six months.

Takeaway

The longer term impact of Kirwan is likely to be an increase in the number of cases being dismissed for want of prosecution on the grounds of delay alone. The decision is also likely to prompt the re-evaluation of historic, extant proceedings by both defendants and plaintiffs alike, with the development presenting an opportunity to defendants in particular to finally dispose of historic cases where prejudice to the plaintiff in dismissing the proceedings may be more difficult to establish.

As the courts continue to interpret and apply the new test, practitioners should also be alert for any changes to the Rules of the Superior Courts as the Supreme Court in Kirwan was unanimous that these should now be updated to specifically provide for the circumstances in which a case may be dismissed for delay.

Contact us

This is a fast-evolving space and there will likely be more judgments on this topic in the not too distant future. We will continue to monitor developments in this area.  For more information in relation to the above, please contact Karen Reynolds, Connor Cassidy or your usual Matheson contact.

[1].           Department of Justice Press Release dated 25 April 2024; Dáil Éireann debate dated 25 February 2025