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Supreme Court: ‘Primor’ delay test reformulated

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Written by:
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Case Reporter
Supreme Court: 'Primor' delay test reformulated

The Supreme Court has adjusted the ‘Primor’ test for the dismissal of claims for want of prosecution, finding that delay should be judged by reference to Order 122, rule 11 of the Rules of the Superior Courts.

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About this case:

Delivering his judgment for the Supreme Court, Chief Justice Donal O’Donnell opined: “It is important both to recognise the significance of lapse of time in relation to the jurisdiction, and highlight that factor in the test to be applied. In any other field of activity, two years is a very long time to do nothing. The administration of justice should not be different.”

Background

Around 2005–2006, the appellant, Mr Kirwan, owned a property in Wexford which he decided to develop. Two agreements — one to sell land to the third respondent, Mr Buttle, and the other for the advance of a loan of €1 million by Mr Buttle to the appellant — were entered into. 

Disputes relating to the transaction arose between the parties following the financial crisis of 2008, resulting in the appellant issuing two sets of proceedings, the 2012 action and the 2013 action.

The appellant could not demonstrate that he took any significant step to prosecute his proceedings until August 2018, although he contended that he served notices for particulars upon the respondents in 2014.

This apparent inactivity continued until 2018, when the respondents brought motions seeking that the proceedings dismissed for want of prosecution pursuant to Order 122, rule 11 of the Rules of the Superior Courts (RSC) and/or pursuant to the inherent jurisdiction of the court.

The High Court and Court of Appeal

The High Court dismissed the appellant’s proceedings having applied the test in Primor plc v. Stokes Kennedy Crowley [1996] I.R. 459, finding that his delay was inordinate, inexcusable and that the balance of justice favoured dismissal.

The Court of Appeal upheld the decision of the High Court, finding that the High Court was correct to find that there was moderate prejudice to the respondents by virtue of the lapse of time and in circumstances where the action was likely to be dependent upon witness testimony.

The appellant was granted leave to appeal to the Supreme Court in March 2023 and the appeal was heard in April 2024.

The Supreme Court concluded that it had not previously had the opportunity to examine the functioning of the Primor test and in light of the importance of the appeal, re-opened the oral hearing before an extended composition of the Court and invited the participation of the Attorney General.

The Supreme Court

At the outset of his judgment, Chief Justice Donal O’Donnell remarked that whereas the judgments delivered by three of his colleagues somewhat diverged in approach, all seven judges agreed on three issues: firstly, that Primor had not achieved the objectives for which it was devised; secondly, that the RSC should be amended to include the circumstances in which a case may be dismissed for want of prosecution; and thirdly, that the High Court and Court of Appeal were correct to dismiss the appellant’s proceedings.

Mr Justice Gerard Hogan considered that Primor was an exercise of the court’s inherent jurisdiction pursuant to Article 34.1 of the Constitution and accordingly, an adjustment of the test by the court was permissible and indeed, required in light of the 30 years which passed since it was first adopted.

Mr Justice Brian Murray believed that Irish law took a wrong turn in adopting Primor without analysing the approach of the courts of England and Wales and pointed out that it had not been appreciated in subsequent Irish jurisprudence that there was no equivalent in England and Wales to Order 122, rule 11 RSC. The judge further considered that in light of the introduction of Order 122, the inherent jurisdiction of the court to dismiss for want of prosecution had been supplanted, at least where the O’Domhnaill v Merrick [1984] IR 151 ‘fair trial’ test had not been met.

The majority of the court preferred Mr Justice Hogan’s analysis of the source of the want of prosecution jurisdiction, with the Chief Justice concluding that Order 122 “cannot be seen as occupying the field and expelling the inherent jurisdiction” recognised in Primor.

As to the role of a defendant in litigation, the majority agreed that plaintiff and defendant need not be treated the same where they do not have the same interest in bringing it to conclusion, with the Chief Justice finding that short of something which goes beyond inactivity and reaches the level of acquiescence or positive encouragement in the plaintiff’s delay, “a defendant is not required to spend time, energy and resources on a claim which may never be heard and defendants should not be criticised for doing no more than is required to respond to a claim, and to be ready to meet it if and when it is prosecuted”.

The Chief Justice emphasised that the law should recognise that the passage of time is important and can alone justify dismissal of a claim, and that greater weight needed to be given to the passage of time in considering dismissal applications.

Mr Justice Murray formulated a revised Primor test with which the Chief Justice and Mr Justice Hogan agreed, noting that the courts should be led by the two-year period identified as triggering the power to dismiss a claim for want of prosecution in Order 122. Concurring that two years of inactivity is “a critical milestone”, the Chief Justice summarised the revised Primor test as follows:

  1. “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. 

  2. “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 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; 

  3. “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. 

  4. “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 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.”

The Chief Justice highlighted that this test was “not mechanical” and remains a matter for judgment, with the refined test aiming at greater efficiency in deciding dismissal applications and at providing a structure for more finely balanced claims to focus on the key issues.

For his part, Mr Justice Collins opined inter alia that he was not persuaded that the “adjusted” test pronounced by the court would better serve the interests of justice and that active case management would be a “much more effective” means of ensuring that cases are brought to conclusion within a reasonable time, as that will be statutorily mandated when s.11 of the Court Proceedings (Delays) Act 2024 is commenced. 

In circumstances inter alia where the appellant’s inactivity amounted to more than four years, where the events the subject matter of the proceedings occurred 12 years prior to the issuing of the applications to dismiss and where the substantive hearing was unlikely to take place for some time and where the appellant had received a collateral benefit in the form of an extended stay on a summary judgment obtained against him by virtue of his failure to prosecute his proceedings, the dismissal of the proceedings was justified absent a significant countervailing consideration and notwithstanding that the respondents could not point to any concrete instance of prejudice.

Conclusion

Accordingly, the Supreme Court dismissed the appeal.

Kirwan v. Connors & Ors [2025] IESC 21

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