Homes of Heritage Ltd v Cunningham and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Liam Kennedy
• Judgment Date: 19 December 2025
• Neutral Citation: [2025] IEHC 724
• Court: High Court
• Docket Number: [Record No. 2011/7436P]

Between

Homes of Heritage Limited

Plaintiff

and

Ian Cunningham, Elizabeth Bredin, Susan Bredin and Olga Bredin

Defendants

[2025] IEHC 724

[Record No. 2011/7436P]

THE HIGH COURT

JUDGMENT of Mr Justice Liam Kennedy delivered on 19 December 2025 .

1 . The second, third and fourth defendants (“the applicants”) have applied for orders dismissing the claim against them for delay. The first defendant is not a party to the motion 1. The motion parties agree that the Supreme Court's recent judgment in Kirwan v Connors & Ors [2025] IESC 21 ( Kirwan) now governs the approach to such applications, but disagree as to its interpretation and its impact on the law as previously understood on the basis of Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459 ( Primor), and subsequent decisions.

2 . The applicants say that the claim should be dismissed for inordinate and inexcusable delay, particularly in the 2017 to 2024 period (on top of delay before proceedings commenced). They say that, although they need not show specific prejudice post- Kirwan, they have done so. While acknowledging some delay, the plaintiff seeks to largely defend the prosecution of the proceedings. However, it primarily opposes the application based on its interpretation of Kirwan as requiring an uninterrupted two years' delay immediately before the issuing of the motion. I consider that the proceedings should be dismissed for reasons set out below.

Legal Principles

3 . As the authorities, including those cited by the applicants 2, show, recognising their constitutional obligations and the need to comply with Ireland's European Convention on

Human Rights obligations, Irish courts have adopted an increasingly unforgiving attitude to delay. Such sentiments are the driving force behind the Supreme Court's modified approach, reverberating throughout the Kirwan judgments. O'Donnell CJ referred at paragraph 21–22 to the “increased appreciation of the fact that delay in and of itself is inimical to the just resolution of disputes” adding that:

“ 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.”

4 . Kirwan focused, inter alia, on the overlapping jurisdictions invoked by such motions — the inherent jurisdiction to dismiss for inordinate and inexcusable delay in the prosecution of the action (and references in this judgment to the Inherent Jurisdiction are to this aspect of the inherent jurisdiction 3) and/or the jurisdiction under Order 122, rule 11 (“Order 122”) of the Rules of the Superior Courts (“RSC”). The applicants invoke both jurisdictions.

5 . Order 122 is in the following terms:

“In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed.

In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule.”

6 . The Supreme Court's decision in ( Collins v. Dublin Bus Unreported, 22 October 1999) ( Collins) highlighted the distinction between Order 122 and the Inherent Jurisdiction. Its facts, summarised by Murray J at paragraph 35 of Kirwan, are analogous to this case in key respects. After the High Court dismissed a claim ‘for want of prosecution’ it was argued on appeal that – despite the eleven-year delay since the alleged events giving rise to the action — the Court could not entertain an Order 122 application because it had not been preceded by two years of inactivity as required by that provision. There had been some, albeit minimal and desultory, activity on the plaintiff's part in the period preceding the application. The Supreme Court dismissed the appeal, considering the motion not under Order 122 but as “a similar but distinct application … to dismiss for reasons of delay – delay which was both

inordinate and inexcusable and prejudicial to the Defendants”. It noted that that distinction had been recognised in many cases and that Irish Courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice so required

7 . Butler J summarised the pre- Kirwan position in Campbell v Geraghty [2022] IEHC 241, contrasting the overlapping jurisdictions, noting at paragraphs 17 & 18 that Primor:

“requires the court to consider whether there has been inordinate and inexcusable delay on the part of the plaintiff in prosecuting the proceedings. …

If… the court is satisfied that the delay is both inordinate and inexcusable, then it must then consider whether the balance of justice lies in favour of or against the dismissal of the proceedings.

The plaintiff bears the onus of establishing that, notwithstanding culpable delay on her part, the balance of justice nonetheless requires that she be permitted to continue her litigation.

In Primor, Hamilton CJ set out a number of factors which may be relevant to where the balance of justice might fie. These include

• • delay on the part of the defendant;

• • whether delay or other conduct on the part of the defendant amounts to acquiescence in the plaintiffs delay;

• • whether the delay is such that it is no longer possible to have a fair trial

• • whether serious prejudice has been caused to the defendant. That prejudice is not necessarily limited to prejudice in the defence of the proceedings but in fact that is the only prejudice raised by the defendant in this case.”

8 . In Kirwan, while unanimously endorsing the Court of Appeal and High Court's decisions to dismiss a claim for want of prosecution, the Supreme Court modified the approach to such applications. The events giving rise to the proceedings allegedly occurred in 2005/2006 but (two) proceedings only issued in 2012 and 2013. There was no further activity until August 2018, when a group of defendants (the Buttle defendants) applied to dismiss the 2013 proceedings for want of prosecution. In November 2018, after the plaintiff issued cross-motions, the other defendants, the solicitor defendants, issued a corresponding want of prosecution motion, as outlined in paragraph 3 of O'Donnell CJ's decision.

9 . The Supreme Court determined that the Primor test should be modified in the light of increasing concerns about the detrimental impact on the administration of justice of delays in prosecuting litigation, coupled with concerns as to the complexity and subjectivity of the Primor test. The importance of the issue was reflected in the fact that, having first been heard by a smaller panel, the appeal was re-argued before an expanded panel. O'Donnell CJ and Hogan and Murray JJ (at paragraphs 23, 173 and 53 respectively) agreed that Primor gave insufficient weight to the harmful impact of delay on the interests of justice, suggesting that dismissal for long delay might be warranted even without proof of specific prejudice. At paragraph 152, Hogan J identified the need for a “ significantly adjusted” test that was more workable and predictable and less lenient towards plaintiffs to reduce the uncertainty in most applications and to allow them to be resolved efficiently. At paragraph 4, Collins J described the Primor test as “a laundry list of factors, without any real guidance as to how those factors interact or what their relative weighting should be.” The Court sought to make the test simpler, less subjective and more focussed on delay, effectively creating a presumption in favour of dismissal in more egregious delay cases, irrespective of specific prejudice. The Court held that, consistent with Order 122, two years of inactivity should be the “benchmark” for dismissal under the Inherent Jurisdiction. Hogan J observed at paragraph 170 that:

“the focus of the law should, I suggest, be more clearly upon the simple lapse of time. That is, in principle, enough to permit dismissal for want of prosecution without showing anything else such as prejudice. Where the delay is appreciably longer than two years — such as four years or more — than one may expect that save for special reasons the action will be dismissed for want of prosecution without the necessity to prove prejudice”.

10 . Hogan J added at paragraph 173 that the longer the delay the more compelling the plaintiff's reasons would have to be:

“One might therefore say that the expiry of the two-year period which triggers the application of Ord. 122, r. 11 creates a presumption in favour of dismissal of the action, but that such presumption may be displaced.”

11 . At paragraphs 24–25 O'Donnell J gave short shrift to suggestions that such dismissals interfered with the constitutional right of access to the courts:

“24. … 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….

25. Once it is accepted, as it must be, that the existence of rules on dismissal of a claims for want of...