Murphy v Aer Lingus Group Plc and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 31 October 2025
• Neutral Citation: [2025] IEHC 589
• Docket Number: Record No 2013/8549P

Between:

Emily Murphy

Plaintiff

and

Aer Lingus Group Plc and Aer Lingus Limited

Defendants

[2025] IEHC 589

Record No 2013/8549P

THE HIGH COURT

JUDGMENT of Mr. Justice Mark Heslin delivered on the 31 ^st day of October 2025

Introduction

1 . These proceedings commenced over 12 years ago, when the plaintiff issued a personal injuries summons, on 9 August 2013. The plaintiff claims that in the course of her employment as cabin crew she suffered personal injuries when an aircraft “landed heavily” on a flight from Dublin to Birmingham, on 13 August 2011. In this application, the defendants seek an order dismissing the plaintiff's claim by reason of delay.

The law

2 . The approach to an application of this type was recently clarified in Kirwan v. Connors & Ors. [2025] IESC 21 (“ Kirwan”) wherein the Supreme Court reformulated the test in Primor Plc v. Stokes Kennedy Crowley [1996] IR 459, with a greater emphasis on the passage of time.

Guiding principles

3 . For present purposes, it is sufficient to quote the analysis which appears at paragraph 26 of the judgment delivered by the Chief Justice, on behalf of the majority:

“ In my view, 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. Greater weight should be given to the factor of the passage of time. This will also have the merit of simplifying the test to be applied. I agree with Hogan J. that two years of inactivity is a critical milestone. I would apply the tests set out in the judgment of Murray J. at paragraphs 53 and 54 and with which I understand Hogan J. agrees. That means that:

• (i) until the point is reached where there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under the O Domhnaill v Merrick jurisdiction.

• (ii) After two years of total inactivity, a claim may be dismissed for want of prosecution. It is likely that a claim will only be dismissed at this point if in addition to the period of inactivity a plaintiff can point to some additional prejudice or other factor pointing towards dismissal. If a court does not dismiss the claim, it would be entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal;

• (iii) If there has been four years total inactivity then the claim should be dismissed if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably accompanies a long effluxion of time, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial. Conversely, if there are factors such as specific prejudice to the defendant that will strengthen the case for dismissal, but it should be emphasised that it is not necessary to point to any such factor: passage of this amount of time is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.

• (iv) Finally, where there has been a cumulative period of complete inactivity for more than five years, I agree with Murray J. that the court should have a generous power to dismiss cases, and the court should feel free to dismiss the proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational social or economic disadvantage, or otherwise in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated to conclusion or where there has been serious misconduct by the defendant in the course of the proceedings. I agree with what Murray J. says about such cases at paragraph 54 of his judgment.” (emphasis added)

Evidence

4 . Bearing the foregoing in mind, I now turn to the facts which emerge from a careful examination of the pleadings and the affidavit, sworn on August 2024, by Mr. Billy Brick solicitor for the defendants, as well as the exhibits thereto. The plaintiff did not swear any affidavit in opposition to this application. Whilst still ‘on record’ the plaintiff's solicitors have been unable to obtain instructions, and I will return to this issue at the end of this judgment.

Chronology

5 . A chronology of relevant events is as follows:-

6 . On 13 August 2011, the plaintiff allegedly suffered injury and loss when, according to her pleaded claim “ The aircraft landed heavily. There was a heavy impact and the Plaintiff's upper body was forced downward into the rigid seat.”

7 . On 7 August 2013, an application was submitted to the Personal Injuries Assessment Board (“PIAB”). This was just 6 days prior to the expiry of the two-year limitation period.

8 . On 9 August 2013, the plaintiff's personal injuries summons was issued.

9 . On 11 August 2014, an Appearance was entered on behalf of the defendants.

10 . On 26 August 2014, the defendants raised a notice for particulars. This raised 13 queries some of which had sub-paragraphs. In objective terms, it was not a particularly long document. The particulars sought ran to less than 3 pages and there is nothing to suggest that the plaintiff, acting with reasonable diligence, would have any difficulty providing replies within a relatively short period. This is not what occurred.

11 . On 8 December 2016, the defendants' solicitors wrote to the plaintiff's solicitors seeking replies to particulars, stating inter alia:-

“ We note that the plaintiff has failed to progress their case or take any positive steps in over 2 years”.

12 . The foregoing is a statement of fact. There had been silence from the plaintiff who neither furnished replies, nor suggested that replies were unnecessary. That silence continued.

13 . On 3 November 2017, the defendants issued a motion seeking an order to compel the plaintiff to deliver replies to particulars. Thus, faced with prolonged inaction by the plaintiff, it was the defendants who sought to ‘prod’ the plaintiff into moving her case along.

14 . Against that backdrop, an order was made by this court, on 11 December 2017 (Barr J.) directing that the plaintiff deliver replies to particulars within 4 weeks; and the plaintiff was ordered to pay the defendants' costs, when taxed and ascertained.

15 . On 4 January 2018, replies to particulars were delivered by the plaintiff's solicitors. I pause to note that this was over 3 years and 3 months after the Notice for Particulars had been raised by the defendants.

16 . On 2 February 2018, the defendants' solicitors wrote to the plaintiff's solicitors indicating that the plaintiff had failed to provide sufficient replies; calling for further information; and stating, inter alia:

“… confirm by return if the plaintiff intends on issuing a notice of intention to proceed given the lapse of 3 years since the last exchange of pleadings. Order 122 rule 11 refers.”

17 . Order 122, rule 11 provides that:-

“ 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.”

18 . On 21 February 2018, the defendants' solicitors wrote again to the plaintiff's solicitors pointing out the absence of a reply to their 2 February 2018 letter and warning that a further motion would issue if full replies were not provided.

19 . On 19 April 2018, the plaintiff's solicitor filed and served a notice of intention to proceed.

20 . The defendants issued a further motion, with a return date of 16 July 2018, seeking an order dismissing the plaintiff's claim for failure to deliver full replies to particulars. This constituted further proactivity by the defendants in the face of lengthy delay by the plaintiff.

21 . On consent, an order was made striking out the defendants' second motion on the basis that the plaintiff's replies would be furnished promptly, and an order was made for the defendants' costs, with a stay.

22 . On 13 July 2018, the plaintiff provided further replies to particulars as well as updated particulars of negligence. Bearing in mind that additional particulars had been sought by the defendants, on 2 February 2018, it took over 5 months and a second motion for the plaintiff to deliver further particulars. However, particulars of special damages remained outstanding.

23 . On 18 October 2018, the defendants delivered their Defence. Thus, the pleadings were ‘closed’ at that point.

24 . On 13 November 2018, the defendants' solicitors wrote to the plaintiff's solicitors, pointing out delay and stating inter alia:-

“… confirm when your client intends on issuing notice of trial”

25 . Once more, the foregoing was an attempt by the defendants to prompt the plaintiff to progress her own case. Despite this, no notice of trial was served by the plaintiff.

26 . On 28 March 2019, the defendants' solicitors wrote to the plaintiff's solicitors stating inter alia:-

“… There has been inordinate and inexcusable delay on the part of your client in bringing...