Supreme Court tightens the rules on litigation delay – implications for insurers

This article was co-authored by Aoife Mee, Trainee Solicitor. 

The Supreme Court has reformulated in Kirwan v Connors and Ors [2025] the test defendants have to meet to get proceedings dismissed where a plaintiff has delayed in prosecuting them.  The judgments are linked below:

Kirwan v Connors & Ors (O'Donnell CJ)

Kirwan v Connors & Ors (Murray J)

Kirwan v Connors & Ors (Collins J)

Kirwan v Connors & Ors (Hogan J)   

This landmark judgment on procedural delay lowers the bar for defendants seeking to have proceedings dismissed for want of prosecution or delay and puts greater pressure on plaintiffs to prosecute their claims in a timely manner.

The decision signals the judiciary’s increasing intolerance for inaction and its preference for timely, rules-based litigation. This shift offers insurers new tools to manage legal risk and promote efficiency in claims resolution.

The old test

Pre-Kirwan, it was extremely difficult for defendants to have proceedings dismissed, even where the plaintiff had not taken any procedural steps for years.  The previous test, set out in Primor v Stokes Kennedy Crowley [1996], required a defendant to show that the delay was inordinate and inexcusable and that the balance of justice lay in favour of dismissal.

In Kirwan, the Supreme Court unanimously agreed that the Primor test was too subjective and inconsistently applied, leading to unpredictable results.  O’Donnell CJ noted that, as a result, Primor claims in the High Court have become quite protracted, involving detailed debates, and often have the “perverse consequence” of “adding significantly to the delay in getting the proceedings to a hearing”.

The new test

The Supreme Court has called for a “sliding scale approach” of evaluating prejudice based on the length of delay. It focuses on specific periods of inactivity (2, 4, and 5 years) and recognises that the passage of time itself can justify dismissal:

Period of Delay	New Approach
≤ 2 years	Should only be dismissed for abuse of process or prejudice to the defendant
2 years +	May be dismissed.  If the court does not dismiss, it can impose strict case management directions.  Non-compliance with these directions can in itself justify dismissal.
4 years +	Should be dismissed if dependent on oral evidence, unless the plaintiff can show compelling reasons that the case can properly proceed.
5 years +	Courts have a generous power to dismiss unless there is a pressing exigency of justice that requires that the case be permitted to go to trial.  This would include, for example, where the Plaintiff faced educational, social or economic disadvantage, where proceedings concern a matter of public interest or where there has been serious misconduct by the defendant in the court of the proceedings.

 

The Court emphasised that delay itself is prejudicial to the administration of justice and should be given greater weight in decisions to dismiss proceedings.

The greater the delay over 2 years, the less concrete prejudice is required to justify dismissal.  While the court retains a discretion, dismissal is more likely for longer delays.

Should defendants “let sleeping dogs lie”?

In relation to defendant inaction, the majority of the Supreme Court agreed that “defendants are not obliged to take proactive action when faced with litigation delays which are not of their making”, but that different considerations would apply where a defendant has acquiesced to the plaintiff’s delay or positively encouraged the plaintiff to refrain from prosecuting a claim.

However, Collins J criticised defendant inaction and suggested that failure to act should weigh against them in any application for dismissal based on delay. Collins J emphasised that litigation is a “two party operation” and warned against the traditional tolerance for defendants who “let sleeping dogs lie”. Defendants should promptly respond to prolonged inactivity by raising the issue in correspondence.

Implications for insurers

This is a positive development for defendants. The new test removes the requirement for defendants to demonstrate specific prejudice and establishes a presumption of prejudice where the delay is greater than two years.  This effectively shifts the onus onto the plaintiff to show why proceedings should not be dismissed. 

However, Insurers should be mindful of Judge Collins’ warning regarding defendant inaction amounting to acquiescence and should raise any prolonged inaction by the plaintiff in correspondence as opposed to “letting sleeping dogs lie”.