The Previous Primor Principles

1. Inordinate Delay: The delay in prosecuting the proceedings must be inordinate. This means the delay must be excessive or unreasonable in the context of the case.
2. Inexcusable Delay: The delay must also be inexcusable. This requires the Court to examine whether there is any reasonable or justifiable explanation for the delay.
3. Balance of Justice: Even if the delay is both inordinate and inexcusable, the Court must still consider whether the balance of justice lies in favour of dismissing the proceedings. This involves weighing the prejudice caused to the Defendant by the delay against the Plaintiff's right to have their case heard. Factors such as the impact of the delay on the Defendant's ability to defend the case (e.g., loss of evidence or faded witness memories) are most relevant.

Key Facts

The Plaintiff, Brendan Kirwan, initiated proceedings in the High Court against multiple Defendants, including the First Named Defendant, MJ O'Connor Solicitors, and other individuals and entities. The Plaintiff’s claim related to alleged professional negligence, misrepresentation and fraud, alleged to have occurred between 2005 and 2006. 

The proceedings were issued on 30 May 2013, which was just within the statutory limitation period for the alleged events of professional negligence, misrepresentation and fraud. In August 2018, the Defendants applied to dismiss, citing over four years of procedural inactivity. The Defendants argued that the Plaintiff had not taken any procedural steps to advance the case after Defences were delivered in December 2013. 

In resisting the application to dismiss, the Plaintiff claimed to have served Notices for Particulars in 2014. This was disputed by the Defendants on the basis that no evidence of service was provided. The Plaintiff also argued that the delay was caused by not receiving his legal file from the First Named Defendant, MJ O’Connor solicitors, until 2017. However, the High Court found evidence he had received a copy of his legal file in 2010. 

The Plaintiff had obtained a stay on a €1m judgment against him in favour of the Fourth Named Defendant, Filbeck Ltd, on 15 November 2012. He argued that his proceedings should be resolved before the judgment could be enforced. The Court noted that the Plaintiff “impliedly represented” that he would progress his proceedings expeditiously yet obtained a “significant collateral benefit” by failing to do so.

The Decision 

The Defendants successfully argued that the delay prejudiced their ability to defend the proceedings. They specifically pointed to the four years of inactivity by the Plaintiff in progressing his case and the reliance on witness testimony at the trial. Given that over 12 years had passed since the events in question, the ability of key witnesses to accurately recall the events would be significantly diminished by the time the matter went to trial. The Supreme Court dismissed the appeal, upholding the decisions of the High Court and Court of Appeal to strike out the Plaintiff's proceeding for inordinate and inexcusable delay.

Key Findings of the Supreme Court

1. Delay and Procedural Inactivity: The Plaintiff failed to take any procedural steps to advance the case for over four years, triggering the application under Order 122 Rule 11 of the RSC. This rule allows for dismissal for want of prosecution after two years of inactivity.
2. Jurisdiction and Legal Basis: The Court clarified that the power to dismiss proceedings for want of prosecution is rooted in Order 122 Rule 11, not in the Court's inherent jurisdiction. This rule imposes a clear condition, that two years of procedural inactivity must pass before a Defendant can apply to dismiss proceedings for delay.
3. Balancing Factors: The Court considered the total period of delay, the Plaintiff's failure to provide plausible reasons for his inactivity, and the potential prejudice to the Defendants. While concrete prejudice was not proven, the Court acknowledged the inherent prejudice caused by the passage of time in a case reliant on witness evidence.
4. Plaintiff's Conduct: The Court criticised the Plaintiff's failure to progress the case, especially as he had benefited from a stay on a €1m judgment against him, which he obtained by claiming that these proceedings needed to be resolved first.
5. Primor Decision Overruled: The Court overruled the earlier Primor precedent, which had rooted the jurisdiction to dismiss for want of prosecution in the Court's inherent powers. The Court held that the RSC comprehensively governs this power.

The New Test

In revising the long established Primor Principles, the Supreme Court has given clear guidance on when a motion can be brought to dismiss proceedings by noting the following:

1. After two years of inactivity, a case is likely to be dismissed for delay, particularly if it is deemed to be an abuse of process or additional prejudice can be shown.
2. After four years of inactivity, a case should be dismissed for delay, particularly if it is dependent on oral evidence. Such a period of inactivity comes with an increased risk of fading witness memories leading to a witness’ potential reluctance to testify.
3. After five or more years inactivity, the Court should be at liberty to dismiss a case unless there is a pressing need for justice/it is within the public interest that the case goes to trial.

Conclusion

The Supreme Court’s judgment underscores the importance of Plaintiffs actively prosecuting their claims and the consequences of prolonged procedural inactivity. It is a marked departure from the Primor Principles which allowed for significant judicial discretion on a decision to dismiss proceedings for inordinate and inexcusable delay. The judgment provides welcome guidance to litigants and practitioners on the precise time periods of inactivity required to successfully bring a motion to dismiss proceedings.