Strike‑out applications for delay are an increasingly valuable tool where claims have stalled for prolonged periods. While the Irish courts have long applied the demanding Primor test - leading defendants to approach such motions with caution - last year’s landmark decision in Kirwan v Connors [2025] IESC 21 (‘Kirwan’) has refined these principles, introducing clearer time‑based thresholds and confirming that delay alone may now be sufficient to justify dismissal.
For defendants and their insurers, this shift has direct practical consequences for claims strategy, lifecycle management, defence spend, reserving discipline and the prospects for early commercial resolution and file closure.
Background: the Primor test
Historically, a very strict approach was applied by the courts when considering the granting of an order striking out proceedings where a plaintiff had delayed progressing their claim. The bar was set very high under the Primor test which required that all three of the components set out below be satisfied:
i) there must been an inordinate delay,
ii) this delay must be inexcusable/ unjustifiable
iii) the balance of justice must have favoured the dismissal
Since all three limbs had to be met, the test imposed a demanding and often subjective threshold. This increased uncertainty and meant defendants were often reluctant to pursue strike out applications.
Kirwan v Connor [2025]
The proceedings arose from a professional negligence claim brought by the plaintiff against his former solicitors in connection with property transactions dating back to 2005–2006. Although proceedings were issued in 2013, no meaningful steps were taken to progress the litigation for several years. The defendants applied to have the proceedings struck out for want of prosecution due to prolonged procedural inactivity, succeeding in the High Court and Court of Appeal before the matter reached the Supreme Court in May last year.
The appeal was initially heard by a five‑judge panel but, reflecting the significance of the issues, was subsequently re‑argued before an expanded seven‑judge panel, with the Attorney General invited to make submissions. Their subsequent decision unanimously dismissed the plaintiff’s appeal.
A structured, time‑based framework for delay
The decision marks a pivotal shift in how the courts view and deal with plaintiff delays in litigation. Departing from the old Primor test, the Supreme Court instead set out a structured, time‑based framework for assessing delay under 4 categories with clear time thresholds to reference:
- Where there has been inactivity for less than or up to two years - A claim should only be dismissed if the delay is an abuse of the process or there is prejudice to the defendant to the level required to ground an application. Hence, the defendant, must prove a prejudice.
- After two years of total inactivity - A case is likely to be dismissed for delay, particularly if it is deemed to be an abuse of process or if additional prejudice can be shown. 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 a dismissal.
- If there has been four years of total inactivity - The claim should be dismissed if it is dependent on oral evidence where the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably accompanies a long delay. Therefore, the case should be dismissed unless the plaintiff can demonstrate compelling reasons why the claim should be allowed to proceed.
While specific prejudices to the defendant may strengthen the case for dismissal it should be emphasised that it is not necessary to point to any such factor: Passage of this amount of time is now in itself enough and the plaintiff should bear the onus of establishing that there are reasons that a case can properly proceed.
- Finally, where there has been a cumulative period of complete inactivity for more than five years - The court should have a wide power to dismiss cases, and should feel free to do so unless exceptional circumstances arise (for example, matters of public interest or serious misconduct by the defendant in the course of the proceedings).
The Supreme Court confirmed that delay should be measured initially by reference to a period of inactivity exceeding two plus years, with the analysis then progressing along the structured timeline as outlined thereafter. Once the two year threshold is crossed, a presumption of prejudice arises and the onus shifts to the plaintiff to explain why proceedings should not be dismissed.
Significantly, the Supreme Court held that delay of itself, particularly where inactivity approaches or exceeds four years, may warrant dismissal without the defendant having to demonstrate specific prejudice. However, while defendants are not obliged to proactively advance proceedings, the Supreme Court cautioned that strike-out applications for delay, particularly where reputational damage or increased insurance premiums are alleged, may carry less weight where the defendant has materially contributed materially to the delay.
Practical implications following Kirwan
The judgment sends a clear, unequivocal message that unreasonable procedural delay will not be tolerated. Plaintiffs now face a materially higher burden when seeking to justify prolonged inactivity, particularly where delay risks evidential prejudice or undermines the fair administration of justice.
Post Kirwan, strike‑out applications based on delay have become a more realistic and frequently deployed tool. The courts are adopting a more structured, time‑based analysis, placing increased weight on the passage of time itself, particularly in cases dependent on oral evidence. As delay lengthens, tolerance diminishes and the burden shifts decisively to the plaintiff to justify the continuation of proceedings.
Recent experience
Since Kirwan was decided DWF have been involved in a number of successful strike‑out applications in cases arising from prolonged procedural inactivity. These include a professional negligence claim against an architectural practice that remained dormant for more than three years, and a solicitors’ professional negligence claim where proceedings were not progressed for a similar period following issue. In the latter case, the threat to issue a strike out motion ultimately led to the plaintiffs filing a Notice of Discontinuance.
While the facts of each case will inevitably vary, they reflect a consistent emerging theme: unexplained or inexcusable delay is now subject to closer scrutiny, particularly where it gives rise to evidential or reputational prejudice and engages the balance of justice. More broadly, Kirwan has contributed to a clearer and more predictable framework for assessing delayed claims, reinforcing the courts’ willingness to intervene where proceedings have stalled without adequate justification.
Other strike out avenues
The Kirwan decision sits alongside the courts’ established strike‑out powers, which permit proceedings to be dismissed where they are vexatious, abusive, have no reasonable prospect of success, or otherwise constitute an abuse of process.
Most recently, DWF succeeded in the Court of Appeal in striking out a professional negligence claim against a firm of solicitors, on the basis the proceedings were vexatious, lacked any real prospect of success and should not have been pursued at all.
These outcomes have resulted in significant savings for both primary and excess layer insurers, who are no longer exposed to any award of damages or claimant costs. Read alongside Kirwan, they underscore the courts’ increasing willingness to intervene where proceedings are pursued without proper procedural justification.
Key takeaways
- Courts are increasingly unwilling to tolerate prolonged procedural inactivity and delay is now analysed with greater structure and precision.
- Defined periods of complete inactivity are central to the assessment, with clearer time thresholds emerging from recent case law.
- Once the Kirwan thresholds are crossed, the onus shifts decisively to the plaintiff to justify delay.
- Delay alone may now be sufficient to ground or justify dismissal, without the need for extensive additional factors.
- Evidential and reputational prejudice continue to carry significant weight, with courts increasingly recognising the impact of delayed litigation on a defendant’s insurance position, including premium prejudice.
- A clear, structured chronology of case progression and periods of inactivity is a vital tool in establishing prejudice and supporting dismissal applications.
- Defendant passivity may still undermine an otherwise strong application, reinforcing the need for active case management throughout.
For further information on any of the issues discussed in this article, please contact Lisa O’Brien, a Senior Associate in DWF’s Dublin Global Speciality and Professional Indemnity / Financial Risks team, specialising in professional indemnity matters.
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