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The Supreme Court (the Court) has clarified the circumstances in which litigation can be dismissed for want of prosecution. In Kirwan v Connor & Ors [2025] IESC 21, the Court, by majority, refined the well-known test established in Primor v Stokes Kennedy Crowley [1996] 2 IR 459 (Primor) in favour of a simplified test under which the primary factor is the length of delay by the plaintiff. The judgment provides helpful guidance and underscores the importance of plaintiffs progressing litigation expeditiously.
Background
Mr Kirwan issued proceedings against Mr Buttle in August 2012 to recover a sum he claimed was due to him under a 2006 agreement for the purchase of a property. Mr Buttle had also assigned a debt owed to him by Mr Kirwan to a company of which he was a principal shareholder (the Company). The Company had obtained judgment in separate proceedings against Mr Kirwan in November 2012 (the Judgment). In response, Mr Kirwan brought an application to set aside that judgment and brought further proceedings against Mr Buttle and related defendants in respect of the agreement and associated issues.
In December 2013, the various proceedings were adjourned to allow Mr Kirwan to progress his claims in one combined set of proceedings against all the defendants, including the solicitors who acted for Mr Kirwan in the property transaction (the Combined Proceedings). The Combined Proceedings effectively operated as a stay on enforcement of the Judgment. The parties took no further steps in the Combined Proceedings for over four and a half years.
Application to dismiss
In August 2018, Mr Buttle brought an application seeking to have the Combined Proceedings dismissed for want of prosecution and, in November 2018, the solicitor defendants brought a similar application. In September 2019, the High Court dismissed the Combined Proceedings for inordinate and inexcusable delay and the Court of Appeal upheld the High Court’s decision in October 2022.
In March 2023, the Court granted leave to appeal the Court of Appeal’s ruling.
Following an initial hearing before the Court in April 2024, the Court decided that the importance of the issue warranted reopening the oral hearing. The appeal was reheard in November 2024 before an expanded panel of seven judges. The Attorney General was invited to and did participate in the hearing.
On 30 May 2025, the Court unanimously dismissed Mr Kirwan’s appeal. The majority judgments were delivered by O’Donnell CJ and Hogan J, with Murray J and Collins J delivering separate judgments to address some points of difference.
The Primor Test
Order 122, Rule 11 of the Rules of the Superior Courts (RSC) permits a defendant to bring an application to dismiss proceedings if neither party has taken any procedural step in those proceedings for two years. The court also has an inherent jurisdiction to dismiss proceedings for want of prosecution. In Primor, the Court set out the test to be applied when considering an application to dismiss for want of prosecution (the Primor Test) as follows:
Applications to dismiss were not uncommon, but the case law developed in such a way that the Primor Test was difficult to satisfy resulting in protracted hearings, delay and sometimes unpredictable results. In recent years, it became clear that the Primor Test was not fit for purpose and, notably, in the opening paragraphs of his judgment, O’Donnell CJ referred to the “…desirability of seeking an authoritative statement” on this issue, which he observed was one of the “most often invoked strands of jurisprudence in the High Court and on appeal to the Court of Appeal”.
Simplified test for dismissal
The refined test for dismissal, set out by Murray J and accepted by the majority, provides helpful guidance for parties seeking dismissal. This new test, summarised succinctly by O’Donnell CJ, is as follows:
O’Donnell CJ explained that the refined Primor Test above is “not mechanical” and that “individual judges may take different views in borderline cases.” However, he suggested that the refined test should allow for more applications to be decided speedily and provide a structure for focussing on the key issues in borderline cases. O’Donnell CJ articulated three main criticisms of the Primor Test: (i) that the requirement for judges to balance various factors gave rise to “necessarily subjective and contestable” conclusions; (ii) that its assumption that dismissal would interfere with the right of access to a court effectively resulted in a presumption against dismissal; and (iii) that the test overlooked that delay, in itself, is harmful to the administration of justice and alone should be a sufficient basis for dismissal absent some other compelling reason to allow the proceedings to continue.
Diverging views
While unanimous in dismissing the appeal, the views of the members of the Court diverged on some key matters of jurisprudence, specifically: the source of the Court’s power to dismiss for plaintiff delay and the requirement for prejudice and defendant inactivity.
Of particular interest were the differing views regarding the challenges faced by defendants in applying the Primor requirement to show what prejudice they suffered over and above general delay. The majority found that delay, in itself, can be prejudicial to a defendant. Likewise, the majority held that defendant inactivity when faced with plaintiff delay is generally not relevant under the reformulated Primor test. As O’Donnell CJ observed, plaintiffs and defendants “are not co-adventurers in litigation with the same interest in bringing it to a conclusion”. Murray J went further, commenting that the suggestion “of a defendant having mutual obligations to advance the case against them … may be superficially comforting, but it is utterly misconceived.”
Collins J differed on these two points, considering that the defendant had to show some material prejudice before dismissal could be granted and that lapse of time alone was insufficient.
Comment
Kirwan marks a significant, but not unexpected, change in approach. In recent years, the courts have been increasingly critical of parties’ delay and justifiably concerned with the efficient use of scarce court resources. The Kirwan judgment continues this trend and formalises a refined test with passage of time and inactivity on the part of the plaintiff as its central focus. Existing case law may still be relevant where courts must consider arguments made by plaintiffs attempting to resist dismissal in cases where there has been delay.
Although described by the majority as only a “refinement” or “adjustment” to the Primor Test, the new test plainly signals that the courts will take a markedly different approach when determining whether to dismiss proceedings due to plaintiff delay. The removal of the presumption against dismissal absent evidence of prejudice on the part of the applicant removes a significant obstacle to parties making applications of this sort and shifts the burden to plaintiffs to show why proceedings should not be dismissed. The simplicity of the new test will be welcomed for the helpful guidance it provides, should allow courts to determine such applications more efficiently, and may reduce the opportunities for appeals of decisions to dismiss.
For more information in relation to this topic, please contact Sarah Murphy, Partner, Cecelia Joyce, Senior Associate, Simon Barber, Associate, Sinéad Hayes, Knowledge Consultant or your usual A&L Goodbody Disputes team contact.
Date published: 19 June 2026
