High Court: Court addresses novel issue of severability in applications to dismiss for delay

About this case:

• Citation:
  [2026] IEHC 647
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Micheál O’Connell

Delivering judgment for the High Court, Mr Justice Micheál O’ Connell opined, “In the circumstances, in a case like this, where parts of a case are readily severable from others (and a detailed “blue pencil” review of the pleadings is not required), I am satisfied that the court on an application such as this is entitled to dismiss certain elements or parts of an action for want of prosecution, while permitting others to proceed to trial.”

Background

In May 2003, IIB Homeloans Limited agreed to loan €700,000 to two clients of the defendant solicitor, which loan was secured on properties in Dublin. A special condition of the loan was that €50,000 would be retained pending completion and inspection of works to one of the secured properties.

The defendant solicitor gave an undertaking that his clients had or would acquire good marketable title to the properties, and that prior to negotiating the loan cheques or releasing the proceeds, he would ensure that his clients had executed the relevant mortgage documentation and that various conveyancing steps had been completed.

When the borrowers defaulted on the repayment of the loan, it was discovered that the first legal mortgages provided for in the undertaking had not been put in place over the properties.

The loan agreement and the related rights and interests vested in KBC Bank plc in June 2009, and in June 2012, KBC issued special summons proceedings as against the defendant. On 30 November 2018, KBC delivered its statement of claim and on the same date, transferred its interest in the loan and security to Beltany Property Finance DAC.

An application was made to substitute Beltany as plaintiff in November 2019, and in August 2020, Beltany transferred its interest in the loan and security to the plaintiff, Pepper Finance Corporation (Ireland) DAC. In July 2021, an application was made to substitute Pepper as plaintiff.

Apart from without prejudice negotiations with the defendant between September and November 2021, there were no other steps or progressive activity on part of the plaintiff until the defendant brought a motion on 31 March 2025 seeking to strike out the proceedings for want of prosecution.

The High Court

Mr Justice O’ Connell considered that the jurisdiction to dismiss under Order 122, rule 11 of the Rules of the Superior Courts had been triggered in the absence of any proceeding from 28 July 2021, when Pepper was substituted as plaintiff, to the bringing of the defendant’s motion on 31 March 2025, a period amounting to over three years and eight months.

Finding that the court was obliged to identify the aggregate period of inactivity so as to classify the case within the framework laid down in Kirwan v Connors [2025] IESC 21, Mr Justice O’ Connell examined each period of apparent prosecutorial inactivity. 

In the period between 2014 to 2018, the court found that the only events that could be identified as a “proceeding” were eleven adjournments granted with the defendant’s consent.

In that regard, the court observed that “A consent adjournment cannot in itself be characterised as progress in litigation…Nevertheless, it seems to me that a listing before the court, even if it merely results in an adjournment (whether contested or by consent), must be considered a “proceeding” for the purpose of Order 122 rule 11 of the Rules.”

Mr Justice O’ Connell noted that while a defendant can make their agreement to a plaintiff’s request for an adjournment conditional by reserving their position on the delay arising therefrom, the defendant in the case before the court did not do so and that “there is a material distinction, in my view, between mere inactivity in the face of a plaintiff’s inactivity, and positively consenting to the adjournment of an action that is listed before a court.”

Having examined all periods of alleged inactivity, the court calculated an aggregate period of approximately four and a half years consisting of 22 months’ delay from November 2018 to July 2021, discounting two months following the delivery of the statement of claim and eight months during the COVID-19 pandemic, and 34 months’ delay between July 2021 to March 2025, discounting three months during of negotiations and seven months during which correct remedial steps were pursued in respect of one property.

Finding that this placed the delay into the third category identified in Kirwan, where in the absence of compelling reasons for the case to go to trial, the claim should be dismissed if dependent on oral evidence such that the defendant is exposed to the risk of inter alia failing witness recollections.

Mr Justice O’ Connell considered that one of the difficulties with the case before him was that it consisted of three elements corresponding to each of three properties, and that the consequences of delay and the acts and omissions of the parties differed in respect of each element. 

Whilst the judge was not convinced that two elements of the claim should be dismissed, the court was satisfied that the part of the claim relating to one property, “Atlantis”, would be highly dependent on oral evidence of a disputed telephone conversation between the defendant and an IIB representative in 2003.

Noting that “the passage of time will be a considerable obstacle to her having useful evidence to give” and that even if the defendant was adamant as to what he was told in the telephone call, “he may have difficulty under cross-examination in recollecting surrounding facts and circumstances”, the court found no compelling reasons as to why that element of the claim should proceed.

As to whether the different elements of the case could be severed so as to allow the “Atlantis” claim to be struck out and to permit the balance of the claims to proceed, the court highlighted that while there was no authority on the question, there were at least three points which suggested such an entitlement.

In the first instance, the court emphasised the wording of Order 122, rule 11, which allows the court to “make such order and on such terms as to the Court may seem just”.

Secondly, the court recalled that it has long been the case that an application brought by one of multiple defendants will, if successful, see the claim against the defendant severed from the others.

Finally, Mr Justice O’ Connell recognised that the inherent jurisdiction of the High Court which survived the enactment of Order 122, rule 11 and its antecedents “axiomatically contemplates a jurisdiction that is in some respects, at least, wider 22 than the rule.”

The judge reasoned, “in a case like this, where parts of a case are readily severable from others (and a detailed “blue pencil” review of the pleadings is not required), I am satisfied that the court on an application such as this is entitled to dismiss certain elements or parts of an action for want of prosecution, while permitting others to proceed to trial.”

Conclusion

In the circumstances, the High Court ordered that the part of the claim in relation to the property “Atlantis” would be dismissed, with relief being refused in relation to the balance of the claims.

Pepper Finance Corporation (Ireland) DAC v Sean Sheehan Practising under the style and title of Aaron Kelly & Company Solicitors [2026] IEHC 647