The recent Supreme Court decision in the case of Kirwan -v- Connors & Ors (“Kirwan”) has brought significant developments to the landscape of Irish law, particularly in the context of the ‘Primor’ delay test[i].

This landmark ruling has refined the test that will influence future litigation. This article aims to provide a comprehensive analysis of the decision, its implications, and practical considerations for litigation.

Refinement of the test in Kirwan

The Plaintiff in Kirwan issued various sets of proceedings between 2011 to 2013 in relation to events that occurred in 2005/2006. However, the Plaintiff did not take any significant steps to progress the litigation until 2018, when certain Defendants sought to have the 2013 proceedings struck out for want of prosecution. The Supreme Court noted that this case was one in which there was inactivity in the litigation of more than four years.

The Supreme Court considered the strike-out application in light of the three key elements of the Primor delay test, being whether the delay is inordinate, whether the delay is inexcusable, and whether the balance of justice favours the dismissal of the case. It noted that in the 30 years since it was first pronounced, the test has evolved to require a consideration of a multiplicity of factors, such as the length of time since the subject matter events, the length of time the proceedings were inactive, the excuse for any delay, whether the Defendant acquiesced or encouraged the delay, whether extensive documentary evidence is available, and the extent of alleged prejudice suffered by the Defendant. This approach, it opined, is unsatisfactory and results in “subjective and contestable” conclusions.

The Court favoured a more nuanced approach, focusing on the balance of justice and the specific circumstances of each case. The reformulated test includes the following considerations:

1. Inordinate Delay: The Court reaffirmed that the delay must be inordinate. However, it stressed that the assessment of inordinate delay should be more context-specific, taking into account the complexity of the case, the conduct of both parties, and any external factors that may have contributed to the delay.
2. Inexcusable Delay: The Court maintained that the delay must be inexcusable. However, it introduced a more flexible approach, allowing for a broader range of justifications for the delay. This includes considering whether the delay was caused by factors beyond the control of the Plaintiff or whether there were legitimate reasons for the delay.
3. Balance of Justice: The most significant reformulation lies in the balance of justice. The Court highlighted that this element should be the primary consideration, with a focus on the prejudice suffered by both parties. The Court emphasised that the balance of justice should not be a mere formality but a substantive analysis of the impact of the delay on the fairness of the trial and that delay in itself “must be recognised as the primary factor in considering application for a dismissal from want of prosecution”.

The Supreme Court decision also set out that the passage of time should be given greater weight and the following parameters were enumerated:

1. Up to 2 years of inactivity – claims should only be dismissed if the claim is an abuse of process or there is a requisite level of prejudice to the Defendant.
2. After 2 years of inactivity – claims may be dismissed but only where there is evidence of additional prejudice or other factors pointing towards dismissal.
3. After 4 years of inactivity – claims should be dismissed if oral evidence is required which exposes the Defendant to the risk of loss of recollections and reluctance of witnesses after a passage of time, unless the Plaintiff gives compelling arguments why it should not be dismissed. While there may be specific prejudice factors which strengthen the Defendant’s case to dismiss, the Defendant is not required to point to those as, once there has been 4 years of inactivity, the onus shifts to the Plaintiff to establish that the claim ought to proceed.
4. After a cumulative period of complete inactivity for 5 years – the Court should have a generous power to dismiss claims unless there is a compelling reason it should not be dismissed, such as the case involves a public interest issue or there has been serious misconduct by the Defendant during the proceedings.

Practical Considerations for parties involved in litigation

This decision highlights certain practical steps that should be carried out by parties to litigation to protect themselves against such applications. These include

• maintaining comprehensive documentation of all actions taken and any factors contributing to delays. This documentation can serve as evidence to justify any delays and demonstrate that they were not inexcusable.

• parties should also work effectively with legal teams to develop strategic litigation plans that anticipate potential delays and address them proactively. This includes communicating to legal advisors any potential bottlenecks so that measures to mitigate their impact may be implemented.

• until now, there was some level of uncertainty with regard to Defendants’ obligations to progress litigation. In this decision, Mr Chief Justice O’Donnell commented that “Courts must hold the scales equally between the Plaintiff and Defendant, but that does not mean that they are to be treated as the same when they are not” and was of the view that “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”. This suggests that while there is more of an onus on Plaintiffs to progress proceedings, all parties (including Defendants) should be vigilant of deadlines involved in the litigation process.

Conclusion

The Supreme Court’s decision in Kirwan marks a significant shift in the application of the Primor delay test. By introducing a more flexible and context-specific approach, the Court has provided a framework that reduces time and costs and better balances the interests of both parties and ensures a fairer assessment of delays. The Court has set out specific periods of delay/inactivity which might give rise to dismissal of proceedings. There is now less of a focus on specific prejudice suffered by the parties, particularly in cases where there has been inactivity for four or more years.  

[i] Originally formulated in Primor v Stokes Kennedy Crowley [1996] 2 IR 459