High Court in Ireland confirms applicability of the Kirwan criteria to address cumulative inactivity in litigation

The Irish Supreme Court’s decision in Kirwan v Connors & Ors [2025] represented a landmark shift in the approach taken by Irish courts to the issue of delay and many have eagerly anticipated how this new approach might be applied by the Irish courts going forward.

Holmes v Attorney General & Ors is an important development in the post-Kirwan environment as it affirms the judiciary’s growing intolerance for drawn-out and inefficient litigation. It also emphasises that plaintiffs and defendants are not “co-adventurers” in litigation and that the onus rests with the plaintiff to progress their case in a timely manner.

Background

Mr Holmes claimed that, during his admission to hospital in 2005 where he was receiving follow-up treatment for injuries sustained in a motorcycle accident, he contracted an MRSA infection. He alleged that this was caused by a failure on the part of the hospital to engage proper infection control measures. As set out in the judgment, “[t]here are no allegations made as regards the plaintiff's initial treatment in hospital (where he had been treated for a compound fracture of his left femur, a fractured pelvis and a dislocation of his left hip) but rather that during follow-up treatment, the plaintiff was placed in an MRSA infected area which the defendants knew or ought to have known was detrimental to his health and wellbeing”. Mr Holmes issued his Personal Injuries Summons on 14 March 2007. Over 17 years elapsed since the commencement of proceedings before the High Court heard the application for delay.

The fourth and fifth named defendants applied to have Mr Holmes’ claim dismissed on the basis of delay. They cited five distinct periods of delay on the part of Mr Holmes in advancing his claim as follows:

1. Delay between the Notice for Particulars being issued and Replies received (3 years, 4 months);
2. Delay in furnishing the first tranche of discovery (2 years, 3 months, 28 days);
3. Delay in furnishing the second tranche of discovery (1 year, 5 months);
4. Delay in furnishing particulars of special damage (7 years, 2 months); &
5. Last communication from the plaintiff prior to the application issuing (2 years, 7 months).

In support of their application, the defendants also made the following points (as set out at paragraph 9 of the judgment):

1. "the totality of the delay between the index of the event and the date of the swearing of the grounding affidavit was 18 years, 11 months;
2. the totality of the delay between the issue of the personal injuries summons and the date of swearing the grounding affidavit was 17 years, 2 months; &
3. the affidavit of discovery sworn by the plaintiff on 16 December 2013 was the last “proceeding/step” in the case and, as of the swearing of the grounding affidavit, this was a delay of 10 years, 5 months”.

The plaintiff’s solicitor provided various reasons for the periods of delay outlined, including Mr Holmes’ ill health, outstanding medico-legal reports, difficulties accessing medical records and administrative errors whereby emails were not correctly assigned to the case management system.

Decision

The High Court granted the application to strike out the plaintiff’s claim on the grounds of delay and confirmed the applicability of the Kirwan criteria.

The Court first considered each period of delay individually and assessed whether they were excusable. The Court decided that the first period of delay was excusable, accepting that during this period the plaintiff was in ill-health and that the plaintiff’s solicitor engaged in an extensive review of records. The Court found that the third period of delay was also excusable, owing to difficulties accessing medical records. The remaining periods of delay, however, were held to be inexcusable.

The High Court considered that in the present case there had been a cumulative period of “total inactivity” greater than five years. The Court stated that, in those circumstances, an order striking out the plaintiff’s claim should be made, unless the Court was satisfied that there was a “pressing exigency of justice” which would permit the claim to remain in being.

The Court was not satisfied that there was any such exigency. Firstly, the Court found that the plaintiff had not alleged any specific prejudice which would be suffered by him if his case were dismissed. Secondly, the Court was not satisfied that the defendants had “acquiesced” in the plaintiff’s delay. Acquiescence, the Court held, would require “actively lulling the plaintiff into a false sense of security, such as to positively encourage the plaintiff to refrain from prosecuting his claim.” Finally, the Court was not satisfied, when considering the plaintiff’s claim in the round, that this was an “exceptional” situation such as to warrant the continuation of the claim.

Comment

The decision in Holmes, like Kirwan before it, signals a greater willingness on the part of the judiciary to strike out stale claims. It demonstrates that, where there has been a cumulative period of inactivity exceeding five years, a striking out of the plaintiff’s claim will ordinarily follow, unless there are exceptional circumstances.

While the case will be seen as a welcome development for defendants, it is also clear that the period of cumulative delay was particularly excessive. It remains to be seen how borderline cases, or cases with fewer than five years’ cumulative inactivity, will be assessed by the Irish courts under the Kirwin criteria.

Related items:

• Supreme Court tightens the rules on litigation delay – implications for insurers
• Irish High Court dismisses personal injury claim over years of inactivity