“Two years is a very long time to do nothing” – the Supreme Court overhauls the Primor test for delay

Introduction 

On 30 May 2025, the Supreme Court’s widely anticipated decision in Kirwan v O’Connor and Others¹  was handed down. The decision clarifies the factors the courts will take into account when deciding whether a case should be dismissed where plaintiffs delay in progressing their claims. 

The background 

Mr Kirwan issued proceedings in 2013 arising from alleged breach of contract in the context of a property dispute. In 2018, one of the defendants brought an application to dismiss the proceedings on the basis that Mr Kirwan had delayed in prosecuting his action. It was argued that Mr Kirwan had not taken any significant steps to progress the action for a period of five years. 

In the High Court, Mr Justice Meenan dismissed the proceedings citing inordinate and inexcusable delay on the part of Mr Kirwan. This decision was upheld by the Court of Appeal. The Court of Appeal’s decision was then appealed to the Supreme Court.

The Supreme Court welcomed the opportunity to re-examine the Primor² principles, which have been applied in assessing whether a claim should be dismissed on the basis of delay since 1992. 

The decision 

The Supreme Court unanimously dismissed the appeal and reformulated the test as follows:

• Where there has been a period of inactivity of less than two years, a claim should only be dismissed where the claim is an abuse of process or where the prejudice to the defendant is to the level required to ground an application under the O Domhnaill v Merrick jurisdiction.
• Where the period of activity has been at least two years, a claim may be dismissed for want of prosecution. It is likely that the defendant will need to point to another factor or prejudice against it for the claim to be dismissed at that point. If the claim is not dismissed, the court can set out case management directions, with the non-compliance of those directions being possible grounds for future dismissal of the claim.
• Where the period of inactivity has been at least four years, if a claim is based on oral evidence, it should be dismissed unless the plaintiff can demonstrate compelling reasons as to why it should not be dismissed. Conversely, factors such as prejudice are not necessary for the defendant to point out as the passage of time is itself sufficient reason for the dismissal of a claim. The onus is entirely on the plaintiff to establish reasons why the claim should proceed and not be dismissed.
• Where the cumulative period of inactivity of proceedings is more than five years, the court has generous powers to dismiss the claim unless there is a pressing exigency of justice that requires the claim to be permitted to go to trial. Exceptional situations where this may occur include serious misconduct on the part of the defendant, where the proceedings disclose an issue which public interest demands should be litigated or where the plaintiff has experienced educational, social or economic disadvantage in progressing his or her action.
  

The implications of the new test

The courts have become increasingly critical of plaintiffs who delay in the prosecution of actions in recent years. The new test will bolster that trajectory and we are likely to see more cases being dismissed for delay in the future. It will also bring greater certainty to the type of delay that will result in dismissal and is likely to have the desired effect of streamlining the court’s assessment of applications to dismiss claims for delay.  The decision will be welcomed by insurers, as it will place a greater onus on plaintiffs and accelerate the resolution of these types of claims.

It will be interesting to see how the decision is interpreted and applied across the courts in the coming months. 

For more queries on this case, contact Shane Neville or Laura Keane from the Byrne Wallace Shields Litigation and Insurance Teams. 

¹ [2025] IESC 21