Kirwan v Connors and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Maurice Collins,Mr. Justice Gerard Hogan,Mr. Justice Brian Murray,Mr. Justice O'Donnell
• Judgment Date: 30 May 2025
• Neutral Citation: [2025] IESC 21
• Docket Number: S:AP:IE:2023:000001
• Court: Supreme Court

Between

Brendan Kirwan

Plaintiff/Appellant

and

Marguerite Connors Trading Under the Style of MJ O'Connor Solicitors, MJ O'Connor Solicitors, Eamonn Buttle, Filbeck Limited, Norman Buttle, Mary Buttle, Hilary Buttle, John O'Leary Trading under the Style of MJ O'Connor Solicitors, Bríd O'Leary Trading under the Style of MJ O'Connor Solicitors

Defendants/Respondents

[2025] IESC 21

O'Donnell C.J.

Dunne J.

Charleton J.

O'Malley J.

Hogan J.

Murray J.

Collins J.

S:AP:IE:2023:000001

AN CHÚIRT UACHTARACH

THE SUPREME COURT

JUDGMENT of Mr. Justice Maurice Collins delivered on 30 May 2025

PRELIMINARY

1 The Court today announces an “ adjustment” of Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459 (“ Primor”). In reality, however, today marks Primor's demise.

Primor and prejudice

2 Primor (which has its roots in earlier authority, going back as far as this Court's decision in Dowd v Kerry County Council [1970] IR 27 (“ Dowd”) and the decision of the Court of Appeal of England and Wales in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229(“ Allen”)) was never particularly loved and, despite the fact that (according to vLex Justis) it has been cited in some 440 subsequent cases, few will mourn its passing. Even so, I am not persuaded that the “ adjusted” test announced today will better serve the interests of justice.

3 I agree that there were difficulties with Primor and/or with how it has come to be understood and applied. Some of these difficulties are inherent in any post-hoc, ad hoc dismissal regime, whatever its particular calibration. Fact dependent discretionary adjudications as to whether, in any given case, the balance of justice favours permitting an action to proceed to trial or favours dismissal consume significant judicial (and litigant) resources, as well as being inherently unpredictable in outcome. Active case management, operating in a framework of clear and prescriptive rules, appears to me to be a much more effective means of ensuring that proceedings are brought to a conclusion “ within a reasonable time” (as will be statutorily mandated by section 11 of the Court Proceedings (Delays) Act 2024 (“ the 2024 Act”) once that provision is commenced, reflecting the provisions of Article 6(1) ECHR which already has legal effect in the State pursuant to the European Convention on Human Rights Act 2003 1). 2 Shortening the limitation periods for

bringing actions in tort and in contract would also make a significant contribution to reducing the period between the alleged wrong and adjudication. 3

4 Primor compounded these difficulties by failing to clearly articulate the test for dismissal. Leaving aside its adoption of “ inordinate and inexcusable delay” as the relevant jurisdictional gateway (forcefully criticised by my colleagues for disregarding the provisions of Order 122, Rule 11 RSC), the threshold for dismissal was not articulated as clearly as it might have been. The passage from the judgment of Hamilton CJ (at pages 475–476 of the report) that is frequently cited as the “ Primor test” is in truth something of a laundry list of factors, without any real guidance as to how those factors interact or what their relative weighting should be. Nonetheless, as I read the decision in Primor, it identifies as a fundamental question “ whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant” (page 476(vi); see also 475(d)(ii)). That is reinforced by Hamilton CJ's later statement that prejudice caused by the plaintiff's delay is a “ fundamental ingredient”: where the prejudice is such that “ a fair trial between the parties cannot now be held”, the proceedings should be dismissed (at 494), though it is clear also that prejudice was not limited to what may be called “ fair trial prejudice” (476(vii)). A consistent theme of Primor is that the remedy of dismissing proceedings on the basis of delay/want of prosecution is available only where it would be “ unfair to the defendant to allow the action to proceed” (see e.g. at 486) or, as the former Chief Justice put it elsewhere, whether, by reason of delay, the claim is one which the defendant “ could not reasonably be expected to defend” (492). That is, evidently, a high threshold for dismissal.

5 That reading of Primor is consistent with the pre- Primor jurisprudence cited with obvious approval in the judgments of Hamilton CJ and O' Flaherty J. These include the decisions from England and Wales referred to by Murray J in his judgment: Allen, Birkett v James [1978] AC 297 and Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197. In Allen, the Court of Appeal (per Diplock LJ) characterised a dismissal order as “ draconian” (a characterisation repeated many times in the Irish authorities) and stated that such an order should not be made “ without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible…” (259). Disobedience to a peremptory order of the court would constitute “ intentional and contumelious” default ( ibid). In his judgment, Salmon LJ identified the third element that had to be established on an application to dismiss on grounds of delay (in addition to inordinate and inexcusable delay) as that the defendants were “ likely to be seriously prejudiced by the delay”, whether in respect of the trial of the issue between them and the plaintiff, or between themselves or between themselves and third parties (268). Even when all three elements were established, the court had to exercise its discretion and strike a balance between the interests of plaintiff and defendant (269).

6 In Birkett v James, the House of Lords approved Allen, noting that the principles laid down in Allen had been applied ever since: 318E-G (per Lord Diplock) and 330B-C (per Lord Salmon). A number of discrete issues were canvassed in Birkett v James, with the House of Lords holding that actions should not ordinarily be dismissed where the relevant limitation period has not expired (because the plaintiff can, in such circumstances, issue fresh proceedings), emphasising that there must in every case be post-commencement delay giving rise to prejudice (because to hold otherwise would be to superimpose a further limitation period on top of that prescribed by Parliament) and holding that the fact that the plaintiff may have an alternative remedy against his or her solicitor is not a relevant consideration in deciding whether to dismiss an action for want of prosecution. Significant as those issues may be (and it is notable that, in this jurisdiction, a different approach was taken to the requirement for post-commencement delay in O' Domhnaill v Merrick [1984] IR 151 and the cases following from it), the principal importance of Birkett v James is its unambiguous confirmation that a defendant must establish “ serious prejudice” before an action may properly be dismissed, even where the plaintiff has been guilty of inordinate and inexcusable delay.

7 In Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197 the House of Lords was invited to depart from its decision in Birkett v James on the basis — so it was said — that the Birkett v James regime had failed to achieve the timely conduct of litigation by plaintiffs and the reduction of delay and so the House of Lords was invited to establish the principle that actions should be struck out for inordinate and inexcusable delay simpliciter, without any requirement to establish prejudice. Giving the only speech, Lord Griffiths robustly rejected that invitation:

“ … [counsel] submits that once the limitation period has expired so that the plaintiff cannot commence a fresh action, inordinate and inexcusable delay in the conduct of the litigation should be a ground for striking out even though there can be a fair trial of the issues and the defendant has suffered no prejudice from the delay. What would be the purpose of striking out in such circumstances? If there can be a fair trial and the defendant has suffered no prejudice, it clearly cannot be to do justice between the parties before the court; as between the plaintiff and defendant such an order is manifestly an injustice to the plaintiff. The only possible purpose of such an order would be as a disciplinary measure which by punishing the plaintiff will have a beneficent effect upon the administration of justice by deterring others from similar delays. I have no faith that the exercise of the power in these circumstances would produce any greater impact on delay in litigation than the present principles. There are still many cases that are struck out for want of prosecution which shows that the deterrent effect of Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229, has not been as successful as was hoped for, and I see no reason to suppose that the deterrent effect of extending the principle to cover this new situation would be likely to be any more successful. At least it can be said that under the present principle such limited success as has been achieved has been with a view to protection of the defendant. To extend the principle purely to punish the plaintiff in the illusory hope of transforming the habits of other plaintiff solicitors would, in my view, be an unjustified way of attacking a very intractable problem. I believe that a far more radical approach is required to tackle the problems of delay in the litigation process than driving an individual plaintiff away from the courts when his culpable delay has caused no injustice to his...