Dismissal of Actions for Want of Prosecution: Primor Principles Re-Examined

Introduction

The Supreme Court's landmark judgment delivered on 30 May 2025 in Kirwan v Connors & Ors has fundamentally reformulated the Primor principles that have governed applications to dismiss proceedings for want of prosecution for over three decades.

This decision provides practitioners with clearer and more predictable outcomes when bringing applications for want of prosecution in circumstances where proceedings have remained inactive for prolonged periods and acts as a warning to Plaintiffs who delay in progressing proceedings, that they now face significantly heightened risk of strike out.

Primor Principles

The Irish courts have relied on the Primor principles to determine when proceedings should be dismissed for delay. The traditional Primor approach operated as a three-pronged test requiring demonstration of:

• (1) Inordinate delay

• (2) Inexcusable delay

• (3) A balance of justice favouring dismissal

This framework placed a significant evidential burden on Defendants to prove concrete harm from the Plaintiff's inaction.

Kirwan v Connors

A professional negligence action, commenced in May 2013, remained dormant for four and a half years before the Defendant Solicitor sought dismissal under Order 122 Rule 11 of the Rules of the Superior Court. Both the High Court and Court of Appeal applied existing Primor jurisprudence to strike out the proceedings, but the case's significance prompted the Supreme Court to convene an expanded seven judge panel.

New Timescale

The Supreme Court unanimously dismissed the Plaintiff's appeal, albeit with diverging views between the Justices on the application of the Primor principles. Justice Murray's timescale, as formulated by Justice Murray and endorsed by Chief Justice O'Donnell and Justice Hogan, reorientates the approach of the courts to consider the amount of time that a party has delayed taking any steps and clearly identifies inactivity for a period of two years as a threshold point.

Before The Two-Year Threshold: Justice Murray established that until there has been two years of inactivity, claims should only be dismissed if they constitute an abuse of process or there is prejudice meeting the elevated threshold required under the O’Domhnaill v Merrick jurisdiction. This essentially protects legitimate litigation while it remains in reasonable progression.

The Two-to-Four Year Period: After two years of total inactivity, courts may dismiss for want of prosecution, though dismissal typically requires additional factors beyond mere passage of time. Importantly, if courts decline to dismiss, they are entitled to make strict case management directions with the understanding that non-compliance itself justifies dismissal without further application.

The Four-Year Period: Where there has been four years of total inactivity, Justice Murray held that claims should be dismissed if dependent on oral evidence, recognising that Defendants face "the risk of failing recollections and witness reluctance that inevitably accompanies a long effluxion of time". The burden shifts to Plaintiffs to persuade the court that "compelling reasons" exist as to why the claim should not be dismissed and can properly proceed to trial.

The Five-Year Threshold: Beyond five years: where there has been five years of complete inactivity, Justice Murray held that courts should have "generous power to dismiss cases" and should "feel free to dismiss proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial". This includes exceptional situations involving educational, social or economic disadvantage, unusual public law cases where public interest demands litigation to conclusion, or cases involving serious Defendant misconduct.

Judicial Debate

While the Court unanimously dismissed the Plaintiff's appeal in Kirwan v Connors, the Justices' reasoning shows that the Justices had different ideas about how the principles for want of prosecution should be applied. Justice Hogan, though agreeing with the outcome, proposed transforming the traditional three-prong Primor test into a simplified two-part analysis where any inactivity beyond two years would be deemed prima facie inordinate and inexcusable, with the burden on litigants to prove their delay was excusable.

Justice Collins, by contrast, reached his conclusion by applying the original Primor test and subsequent authorities. Rather than embracing the reformulated approach, he emphasised that Defendant inactivity where Plaintiff delay existed remained relevant, maintaining a traditional balancing approach. The majority's adoption of Justice Murray's time-based framework, endorsed by Chief Justice O'Donnell and Justice Hogan, represents the new precedent.

Practical Impact

The decision in Kirwan is likely to bring about significant changes to the way courts will consider the issue of delay. The clarification of the law is a welcome one as it should result in greater efficiency and predictability for litigants.

This judgment also lowers the bar for Defendants seeking to have proceedings dismissed for want of prosecution or delay and puts greater pressure on Plaintiffs to prosecute their claims in a timely manner.

Further Information

For further advice on Commercial Disputes, please contact Ciarán Leavy, Partner and Head of Litigation & Dispute Resolution.