The Supreme Court has dismissed Brendan Kirwan’s appeal against the dismissal of two proceedings arising from events in 2005 and 2006. The Court agreed that the proceedings had been left inactive for more than four years and that the appeal should fail.
The judgment, delivered by Chief Justice O’Donnell on 30 May 2025, concerns proceedings started in 2012 and 2013 against solicitor defendants and members of the Buttle family, along with Filbeck Limited. The 2013 proceedings were dismissed in the High Court for want of prosecution. The Court of Appeal upheld that decision, finding the delay inordinate and inexcusable and the balance of justice in favour of dismissal. The Supreme Court also concluded that both the 2012 and 2013 proceedings had been correctly dismissed.
The Supreme Court used the appeal to reconsider the approach to applications to dismiss proceedings for want of prosecution. The justices agreed that the Primor test, established in 1996, had not worked as intended and that court rules should be amended to set out clearer dismissal criteria. They differed on the legal source of the power: the majority accepted an inherent jurisdiction alongside Order 122 Rule 11 of the Rules of the Superior Courts, while Justice Murray considered the rule the exclusive basis for dismissal in ordinary delay cases.
The judgment sets out guidance placing increasing weight on periods of inactivity. Chief Justice O’Donnell said two years of complete inactivity is a critical milestone; after four years, a claim dependent on oral evidence should be dismissed unless compelling reasons justify allowing it to proceed; and after more than five years, dismissal should generally follow unless there is a pressing exigency of justice. These periods guide judicial discretion rather than operate mechanically.
In this case, the events at issue were 12 years old when the dismissal motion was brought. The judgment said the defendants did not establish specific or concrete prejudice, but identified moderate prejudice from the passage of time in a case likely to depend on witness evidence. It also noted that the proceedings had stayed enforcement of a €1,056,936 judgment Filbeck obtained against Kirwan in November 2012, giving him a collateral benefit while the actions remained unresolved.
Chief Justice O’Donnell concluded that the inactivity, together with that benefit and the age of the events, justified dismissal absent a significant countervailing consideration. The Supreme Court dismissed the appeal; it did not determine the underlying claims at a trial.