The Supreme Court may revisit the long-standing test for striking out cases for inordinate and inexcusable delay. The current test, as embodied in the earlier Supreme Court case of Primor requires the court to consider the length of the delay, the reasons for the delay, the extent to which the delay has caused prejudice and whether there is a good reason to allow the case to proceed despite the delay.
The Supreme Court recently decided to grant leave to appeal in Kirwan v O’Connor indicating that the Court may be willing to reconsider the Primor test in light of changing circumstances, such as the increasing complexity of cases and the impact of delays on access to justice. It will be interesting to see how the Supreme Court approaches this issue and whether it decides to revise or update the Primor test. If the Court does decide to make changes, it could have significant implications for the way in which cases are struck out for undue delay in the future.
Kirwan v O'Connor was heard by the Irish High Court and later the Court of Appeal. The case concerned a property dispute between the two parties, Mr. Kirwan and Mr. O'Connor. Mr. Kirwan had issued High Court proceedings in 2013 for breach of contract against Mr. O'Connor but failed to progress the case for five years. In 2018, Mr. O'Connor brought an application to court to have Mr. Kirwan's case dismissed for delay in prosecuting his claim. The High Court dismissed Mr. Kirwan's case for inordinate and inexcusable delay. This decision was upheld by the Court of Appeal.
The Primor Test
A long and well-established body of case law exists for dismissing cases for delay in situations where litigants have been slow to progress their claims. This is known as “delay for want of prosecution”. The courts exercise their discretion to dismiss a claim based on the interests of justice. The test that has been applied by the Courts since 1996, is the three-pronged test laid down by the Supreme Court in the Primor case. It is commonly referred to as the Primor test, which is as follows:
To have a case dismissed for delay based on this test depends on the facts of the individual case. It is usually clear if there has been inordinate delay. For the delay to be excusable there must be evidence relating to the actual case to justify the delay. Excuses concerning personal or financial circumstances or staffing difficulties, change of solicitors, looking for solicitor’s files or health issues are irrelevant.
The factors to be taken into account when considering the balance of justice include:
Both the High Court and Court of Appeal found that the delay of five years in progressing the case by Mr Kirwan was inordinate and inexcusable, particularly the excuses relating to the fact that he was a lay litigant and could not obtain the original file. They also found that the balance of justice required dismissal of the case owing to the prejudice and reputational damage caused to the defendants by the delay on the part of Mr Kirwan.
The Supreme Court’s decision in this case to grant leave to appeal indicates that the Supreme Court may consider re-examining its procedures regarding case delays, which could particularly impact cases involving public bodies. This is likely in response to increasing criticism in the courts of litigants who cause delays in court proceedings.