The Supreme Court has refined the long-standing Primor test for dismissing actions for want of prosecution to meet modern standards of justice and fairness.

Background

Kirwan v O’Connor was originally heard by the High Court and subsequently by the Court of Appeal, concerning a property dispute where the Plaintiff, Mr. Kirwan, issued proceedings for breach of contract which dated back to 2006. The events surrounding these proceedings occurred some 7 years before claims were issued by Mr. Kirwan in 2012 and 2013, however Mr Kirwan failed to make any significant steps in the proceedings for a period of five years until 2018 when Mr. O’Connor brought a motion for dismissal for delay of prosecution. The High Court dismissed Mr. Kirwan’s claim for inexcusable and unreasonable delay, which was later upheld by the Court of Appeal.

In March 2023, the Supreme Court granted the Plaintiff leave to appeal and invited the Attorney General to participate, as they believed the practical importance of the matter warranted a review of the oral hearing in front of an expanded panel. Chief Justice O’Donnell highlighted that the Supreme Court had not yet had a chance to properly discuss the functionality of the test outlined in Primor and would take the chance to do so in these proceedings.

The Primor Test

The current approach taken by the Courts when it comes to dismissing claims for delay – otherwise known as ‘delay for want of prosecution’ – was established by the Supreme Court in the 1996 case of Primor v Stokes Kennedy Crowley and asks the following questions:

  1. Is the delay inordinate?
  2. Is the delay inexcusable/unjustifiable?
  3. Does the balance of justice favour dismissal of the proceedings?

The Primor test is subjective in nature, and the outcome may vary case-by-case. The test requires the Court to consider the length of the delay, the reasons for the delay - and whether such excuse is good enough to warrant the continuation of the matter - and the extent of prejudice caused to the Defendant by the delay. While it may usually be clear on the face of the matter whether a delay has been excessive, the onus is on the Plaintiff to provide evidence to justify it.

Although it appears from the decision in this case that the Court may be willing to take a less stringent approach to the Primor rules, given the increasing complexity of modern cases and the rampant delays in the justice system.

This test places an onerous duty on the Courts to ensure that claims are conducted in a timely manner, whilst also balancing the Constitutional rights of the Plaintiff to access justice with the Defendant’s right to a fair trial. Although, in more recent years there has been an evident judicial intolerance for delay in proceedings, which has seen an uptick in Courts striking out claims for want of prosecution as well as a greater focus on case progression.

Judgement of the Supreme Court

Although there were diverging opinions in the judgments given by Justices Hogan, Murray, and Collins, they came to the same relative conclusions: that the Primor test has failed to serve its desired effect; the RSC should explicitly set out the parameters in which Courts may strike out a claim for undue delay; and finally, that the High Cout and Court of Appeal were right to dismiss Mr. Kirwan’s appeal in the first instance.

Chief Justice O’Donnell noted that the passage of time alone could be enough to justify dismissal – with two years being a “critical milestone” - and proposed a revised Primor test as follows:

  1. After two years of inactivity, a claim is likely to be dismissed for want of prosecution but is more likely if the claim itself is an abuse of process or if there is additional prejudice alongside the period of inactivity so as to fall under the O’Domhnaill v Merrick jurisdiction.
  2. If there has been four years total inactivity, the case should be dismissed if it is dependent on oral evidence as there is a risk of failing recollections or witness reluctance with long passages of time.
  3. Where there has been a period of five or more years inactivity, the Court should feel free to dismiss the claim unless there is a pressing demand for justice that requires the case to go to trial. This takes into consideration exceptional circumstances regarding the means of the Plaintiff, in cases of public interest, and where there has been serious misconduct by the Defendant during the course of the proceedings.
Conclusion

Although Chief Justice O’Donnell emphasised that this is not a mechanical test and remains a matter for further discussion, following this judgement, the Primor test would move from a three-step process to a two-part one. Any period of inactivity beyond two years would be deemed inexcusable and unreasonable and would warrant the dismissal of the proceedings for want of prosecution. In essence, cases dismissed for want of prosecution can be understood as a decision that it would be unfair to the Defendant to require them to defend the claim because of the inaction of the Plaintiff.

This is a landmark change in the approach to address delay in proceedings as the express guidance regarding the timeframe of such delays will aid those tasked with advising clients as to the degree of success they can expect in such applications.

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‍Flynn O’Driscoll are specialist insurance lawyers and coverage experts who regularly offer insight and guidance on claims.

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