The Supreme Court has dismissed Brendan Kirwan’s appeal against the dismissal of his action for want of prosecution, finding that more than four years of unexplained inactivity and the age of the events in dispute justified ending the case without a trial.
In a judgment delivered on 30 May 2025, Mr Justice Brian Murray said the proceedings concerned events in 2005 and 2006. Kirwan issued the action on 30 May 2013. Defences were delivered on 6 December that year, and the dismissal motion was issued in 2018. Murray said Kirwan took no steps to advance the case from shortly after it began until the motion was issued.
Kirwan said he had delivered requests for particulars in January 2014, but the solicitor defendants denied receiving them. Murray said Kirwan produced no independent evidence that the requests had been sent. He also rejected the suggestion that the delay was explained by the law firm’s failure to provide his file: a copy had been supplied in April 2010, which Murray said was sufficient to allow the case to progress.
The court found no specific evidence that a witness could not remember events, that a witness was missing, or that real evidence was unavailable. Murray nevertheless considered the action moderately prejudiced because it depended on witness testimony and concerned events that were already 12 years old when the dismissal motion was brought. He said the passage of time supported an inference that recollections would have deteriorated.
Murray also noted that Kirwan had obtained a stay of a judgment in favour of Filbeck Limited while the action was pending. He treated that benefit, combined with the failure to advance the case, as weighing in favour of dismissal. He said the case was not dismissed as an abuse of process, and that its merits were not to be tried on the dismissal application.
The judgment sets out Murray’s view that Order 122, rule 11 of the Rules of the Superior Courts governs general applications to dismiss for want of prosecution where no specific procedural default is alleged. In his view, that route requires two years without a procedural step. He proposed assessing the plaintiff’s inactivity, reasons for it and its effects on the defendant and the proceedings. These are Murray’s conclusions in his judgment, rather than a finding that the defendants had proved concrete trial prejudice.
Murray agreed that the appeal should be dismissed. His judgment is one of several judgments in the Supreme Court appeal; this account describes his reasoning and conclusion.