Applications to Dismiss for Want of Prosecution – Primor Test Reformed
Introduction
On 30 May 2025, the Supreme Court delivered a significant judgment in Kirwan v Connor & Ors1, dismissing an appeal due to prolonged and unjustified delay. The Court upheld the lower Courts’ decisions and refined the established Primor2 test for dismissing cases for want of prosecution. The decision marks an important precedent for future delay-based dismissal applications.
Background to Kirwan
The case involved a property dispute and allegations of professional negligence dating back to 2005-2006, with proceedings initiating in 2013. After years of inaction, the Defendant applied in 2018 to dismiss the case under Order 122, Rule 11 of the Superior Court Rules. The High Court applied the Primor test, and found the delay both inordinate and inexcusable, and dismissed the claim – a decision later upheld by the Court of Appeal.
In 2023, the Supreme Court granted leave to appeal, and it recognised that it had never previously reviewed the Primor test. Therefore, it reopened the matter with a seven Judge panel and invited the Attorney General to participate.
Chief Justice O’Donnell noted that while the Judges had differing views on the application of the Primor test, they reached consensus on three key points: (i) the test has not fully achieved its intended purpose, (ii) the Court rules should more clearly define when dismissals for delay are appropriate, and (iii) the lower Courts were correct to dismiss the case.
After 30 years, the Supreme Court determined it was appropriate to refine the Primor principles, using its inherent discretion.
The Primor Test Reformed
Chief Justice O’Donnell emphasised that mere passage of time can justify dismissing a claim, with two years of inactivity serving as a crucial milestone. The Supreme Court reformulated the dismissal test as follows:
- Up to 2 years of inactivity: Dismissal is only warranted if the claim constitutes an abuse of the process, or it causes significant prejudice to the defendant (as per the Merrick3 standard).
- After 2 years of inactivity: Claims may be dismissed if, in addition to the period of inactivity, there exists additional prejudice or other factors which support dismissal.
- After 4 years of inactivity: Claims should be dismissed if, in addition to the period of inactivity, they rely on oral evidence or if there are other factors of specific prejudice to the defendant. However, it is not necessary to point to such other factors of specific prejudice as the passage of time can alone justify dismissal.
- After 5 years of inactivity: Courts have broad discretion to dismiss cases unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial.
Chief Justice O’Donnell highlighted that the revised test is “not mechanical” but preserves judicial discretion, allowing Judges to weigh the circumstances of each case, especially in borderline cases.
Conclusion
The reformulated Primor test provides clearer, practical guidelines for dismissing cases due to lack of prosecution, emphasising the critical importance of timely progress in litigation. In recognising that delays typically disadvantage defendants, the landmark ruling moves away from the old necessity to prove specific prejudice. Instead, it sets defined thresholds for acceptable delays, creating a more predictable and balanced framework for dismissal applications.
Contact
For more on this topic, please do not hesitate to contact Liam Collins, Harry Caulfield or Conal McCluskey of our Litigation and Dispute Resolution Team.
1 Kirwan v Connors & Ors (2025) IESC 21
2 Primor v Stokes Kennedy Crowley (1996) 2 IR 459
3 O’Domhnaill v. Merrick [1984] I.R. 151