The Kirwan Test: A Development of the Primor Principles in Irish Litigation

The Supreme Court’s judgment in Kirwan v Connors & Ors [2025] IESC 21 marks a major shift in the law on delay in Ireland. In reshaping the long standing Primor principles, the Court introduced clearer and stricter guidelines for dismissing proceedings for want of prosecution. The decision stands as a landmark clarification of how delay alone can justify dismissal.

The Primor Framework

In addition to Order 122, Rule 11 of the Rules of the Superior Courts, which permits dismissal where a case has remained inactive for two years, the courts exercise an inherent jurisdiction to strike out proceedings for want of prosecution and/or delay.

Before the Kirwan decision, the courts dealt with these claims by applying the three-stage framework established in Primor v Stokes Kennedy Crowley [1996] 2 IR 459. This required the courts to determine whether there had been an inordinate delay and whether the delay was inexcusable. If so, the courts were obliged to consider whether the balance of justice favoured dismissal of the proceedings.

Over time, the application of the Primor test expanded into an assessment involving a broad range of considerations. The courts took into account the overall passage of time, access to justice, the adequacy of any explanation for the delay, whether the Defendant contributed to the delay, and the degree of prejudice that the delay caused. This approach set a high bar for striking out claims for delay, and often resulted in uncertain and subjective outcomes.

Background of Kirwan

A dispute arose between the Plaintiff and his former solicitor from a failed property venture in 2005/2006. The Plaintiff issued proceedings in 2013, but no meaningful steps were taken to progress the case for over four years. In 2018, the Defendants applied to dismiss the action for want of prosecution on the grounds of inordinate and inexcusable delay. The High Court granted the dismissal in September 2019, and the Court of Appeal affirmed that decision in 2022.

On 30 May 2025, the Supreme Court unanimously dismissed the Plaintiff’s appeal and upheld the decisions of the High Court and Court of Appeal. This decision reinforces the importance of active and timely case management, and emphasises the inherent evidential prejudice that arises from the passage of time, in particular with cases dependent on oral testimony.

O’Donnell CJ noted that “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”, making it clear that the duration of the delay now stands as the primary consideration.

Kirwan as a Development

The Kirwan decision reformulates the Primor principles to focus the analysis on the passage of time itself and recognises that delay alone can undermine the right to a fair trial. In particular, the Court highlighted the importance of the two year period of inactivity under Order 122, Rule 11 RSC and indicated that, once this period has passed, further inactivity will weigh strongly in favour of dismissal unless a compelling justification is provided.

To bring greater predictability and a clearer structure, the Supreme Court set the following guidelines with reference to periods of total inactivity:

1. Under 2 years: dismissal is exceptional and generally limited to situations where the delay is an abuse of process or where the prejudice to the Defendant would result in an unfair trial, as per O’Domhnaill v Merrick [1984] IR 151;
2. After 2 years: dismissal may be granted if, in addition to inactivity, there are other factors or prejudice that would justify dismissal;
3. After 4 years: there is a presumption of dismissal where the case turns on oral evidence or other specific prejudice, though the passage of time alone may be sufficient. The onus is on the Plaintiff to show compelling reasons why the claim should continue; and
4. After 5 years: a broad discretion to dismiss and only in exceptional circumstances should the proceedings continue, such as public interest or serious misconduct by the Defendant.

This new approach represents a shift from the long standing tolerance of inactive cases and acknowledges how delay undermines the constitutional importance of the fair and expeditious administration of justice. It is an evolution rather than a full departure from Primor as the basic structure remains, but Courts are far less willing to accept vague or weak explanations for delay.

As well as the introduction of clear parameters based on the passage of time, greater weight is placed on the third pillar of the Primor test, the balance of justice, which now largely determines the outcome in claims for want of prosecution and/or delay.

Application of Kirwan

In Nowak v Institute of Chartered Accountants in Ireland [2025] IEHC 408, the High Court applied the Supreme Court’s revised approach in Kirwan to strike out proceedings that had been inactive for over eight and a half years. In November 2015, the Plaintiff sought voluntary discovery and the Defendant replied to the request, while also requesting the Plaintiff make voluntary discovery in December of that year. No further action was taken until May 2024, meaning the case fell within the fourth category identified in Kirwan, where dismissal should follow unless a pressing necessity is shown. Finding no such justification, and noting the Plaintiff’s failure to comply with Order 122, Rule 11 RSC, the Court struck out the action for want of prosecution.

Similarly, the High Court in Murphy v Aer Lingus Group plc & Anor [2025] IEHC 589 dismissed the Plaintiff’s claim for want of prosecution due to several periods of inactivity, cumulating in a total period of inactivity for more than 5 years. The Defendants had made repeated efforts to progress the proceedings during this time. The Court also noted that the case would require oral testimony from a number of parties, which heightened the prejudice caused by the prolonged delay.

In Doyle v Commissioner of An Garda Síochána [2025] IEHC 591, the Court again relied on Kirwan to dismiss proceedings that had experienced significant delay, including no statement of claim for 15 years and long periods of complete inactivity. Applying the Kirwan framework, the Court found the delay to be unsupported by any compelling justification.

Conclusion

The Kirwan decision marks a significant reformulation of how the Irish Courts assess delay, reframing the broad and unpredictable Primor test into a clearer structure based off time periods of inactivity. By recognising the inherent prejudice caused by the passage of time alone, particularly in cases reliant on oral evidence, the Supreme Court has shifted the balance firmly towards the timely progression of proceedings.

Subsequent High Court decisions demonstrate the practical impact of this approach, highlighting the importance of fair, efficient, and expeditious justice. Kirwan ultimately enhances predictability and reduces tolerance for prolonged inactivity.