Background
Maurice O’Donnell, a pigeon racing enthusiast, was suspended from membership in the Irish Homing Union National Flying Club in spring 2017. He commenced proceedings on 5 May 2017 seeking injunctive relief and damages for defamation arising from his suspension. The statement of claim was delivered on 27 April 2018, and the sixth and seventh defendants delivered their defense on 8 November 2018.
Between November 2018 and October 2023—nearly five years—no further steps were taken by O’Donnell. In October 2023, the sixth and seventh defendants moved to dismiss for want of prosecution, citing the substantial inactivity. O’Donnell responded that chronic medical conditions, including a severe collapse in Tenerife in May 2019 requiring intensive care, and the impact of COVID-19 lockdown protocols, had prevented him from advancing the claim.
The High Court (O’Regan J.) granted the motion and dismissed the proceedings. O’Donnell appealed, arguing the trial judge misapplied the principles established in the Supreme Court’s recent decision in Kirwan v. Connors [2025] IESC 21.
The Court’s Holding
The Court of Appeal dismissed the appeal and upheld the dismissal. Justice Meenan, delivering judgment, applied the refined framework from Kirwan v. Connors, which departed from the 30-year-old Primor test by giving greater weight to the passage of time as an independent ground for dismissal. Under this new framework, after four years of total inactivity in cases requiring oral evidence, dismissal is appropriate unless the plaintiff demonstrates compelling reasons why the case should proceed. After five years of inactivity, dismissal should be granted unless there is a pressing exigency of justice.
The court found O’Donnell’s medical conditions did not excuse the delay. Although his health conditions degraded his quality of life, they did not prevent him from giving instructions to his solicitor or taking simple procedural steps such as delivering a reply or setting down the action. The one-week intensive care hospitalization in May 2019 was isolated and did not account for the entire five-year gap. The court noted O’Donnell was continuously represented by solicitors and faced no educational, social, or economic disadvantage. Critically, the appellant identified no exceptional circumstances or pressing exigency of justice warranting trial. Given that oral evidence was essential and nearly nine years would have elapsed since the telephone call at issue (potentially ten years by trial), witness memories would be seriously compromised.
Justice Meenan emphasized that the Kirwan test, while not purely mechanical, recognizes that passage of time alone is harmful to the administration of justice and provides a sufficient basis for dismissal without requiring additional prejudice to the defendant.
Key Takeaways
- The Supreme Court’s Kirwan v. Connors framework significantly raised the bar for excusing delay in civil proceedings, moving away from the subjective “balance of justice” analysis of the Primor test.
- Passage of time alone—independent of specific prejudice to the defendant—is now recognized as sufficient ground for dismissal, simplifying the test and predictability.
- Medical conditions or health difficulties do not excuse procedural delay unless they constitute exceptional circumstances or prevent all contact with solicitors; represented plaintiffs can nearly always give instructions.
- In cases dependent on oral evidence, four years of complete inactivity triggers a presumption of dismissal unless compelling reasons are shown; five years shifts the onus decisively against the plaintiff unless a pressing exigency of justice exists.
Why It Matters
This decision establishes clear benchmarks for Irish courts assessing dismissal motions. By rejecting the plaintiff’s medical excuse and emphasizing that chronic health conditions—short of incapacity to communicate with counsel—do not shield litigants from the consequences of inactivity, the court removes a previously uncertain margin of discretion. Practitioners should note that simple procedural steps (replies, notice of trial) remain available even to persons with significant mobility or concentration difficulties, and failure to take them will be viewed skeptically.
The Kirwan framework’s emphasis on time itself as harmful to justice has profound implications: it reduces protracted affidavit battles and appeals over the subjective “balance of justice,” thus decreasing court resources spent on strike-out applications and increasing certainty for defendants that stale claims will be managed firmly. For plaintiffs, this decision signals that representation by solicitors provides no excuse for multi-year inactivity and that the window to progress claims has narrowed significantly.