The Supreme Court has dismissed Brendan Kirwan’s appeal and affirmed orders dismissing his proceedings against a group of solicitor and other defendants. The seven-judge court agreed on the result, although Mr Justice Maurice Collins disagreed with the majority’s revised approach to dismissing cases for delay.
The proceedings concerned events in 2005 and 2006. In September 2013, Eamonn Buttle obtained an order effectively staying a €1,056,936 judgment obtained against him by Filbeck Limited in a separate creditor action. The order was made on the basis that Mr Kirwan would prosecute the combined proceedings. The court said that this undertaking, and the late start of the claim, required him to proceed with particular diligence. It found that he did not do so.
Collins J said the order had given Mr Kirwan a significant collateral benefit while the proceedings were not advanced. He considered that using proceedings to secure an advantage and then failing to prosecute them could amount to abuse of process. However, the dismissal application had not been made on that basis, so he said it would not be right to uphold the orders on that ground.
The judgments also considered the effect of the delay on the defendants’ ability to defend the claim. Collins J said the case against the solicitors depended substantially on oral evidence, particularly that of Marguerite Connors. He considered the Court of Appeal entitled to find that her capacity, and that of other witnesses, to recall details had been considerably impaired. He concluded this was sufficient prejudice under the established Primor test.
The Supreme Court’s majority adopted a revised test under which prejudice is no longer essential to dismissing proceedings for want of prosecution. The judgments describe a sliding scale of presumptions linked to periods of delay, including two, four and five years, while requiring case-by-case assessment rather than automatic dismissal. Collins J disagreed, arguing that material prejudice should remain necessary and that defendants’ failure to seek earlier court intervention should count against a later dismissal application.
The appeal was dismissed and the Court of Appeal’s orders affirmed. The judgment does not set out the terms of those underlying orders in this extract.