Refinement of the Primor Principles and the impact on the defence of clinical negligence claims

We have previously discussed the significance of the Court of Appeal decision in Kirwan v Connors here: The Primor Principles and Clinical Negligence | Carson McDowell

In 2023 the Plaintiff was granted leave to appeal to the Supreme Court and on 30^th May 2025. Four judgments were delivered in which all members of the court agreed that the Primor test has not achieved the objectives for which it was devised, and that the Rules of the Superior Courts should be amended to include specific provisions setting out the circumstances in which a case may be dismissed for want of prosecution by reason of delay.

The Inherent Jurisdiction of the Court

O’Donnell CJ outlined that the source of the court’s jurisdiction to dismiss claims for want of prosecution was an issue that divided the members of the Supreme Court; However, it was O’Donnell CJ’s view that the inherent jurisdiction of the court to dismiss claims for want of prosecution outlined in Primor is jurisprudentially established, cannot be extirpated, but rather, can co-exist with specific rules which reformulate the test, in the hope of more strict and efficient terms.

The Refined Primor Test

Regardless of the source of the power to strike out for inordinate and inexcusable delay, the Court agreed on how that jurisdiction should be exercised. O’Donnell CJ prescribed as follows:

• “Until the point is reached where there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under the O Domhnaill v Merrick jurisdiction.

• After two years of total inactivity, a claim may be dismissed for want of prosecution. It is likely that a claim will only be dismissed at this point if in addition to the period of inactivity a plaintiff can point to some additional prejudice or other factor pointing towards dismissal. If a court does not dismiss the claim, it would be entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal;

• If there has been four years total inactivity then the claim should be dismissed if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably accompanies a long effluxion of time, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial. Conversely, if there are factors such as specific prejudice to the defendant that will strengthen the case for dismissal, but it should be emphasised that it is not necessary to point to any such factor: passage of this amount of time is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.

• Finally, where there has been a cumulative period of complete inactivity for more than five years, I agree with Murray J. that the court should have a generous power to dismiss cases, and the court should feel free to dismiss the proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational social or economic disadvantage, or otherwise in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated to conclusion or where there has been serious misconduct by the defendant in the course of the proceedings. I agree with what Murray J. says about such cases at paragraph 54 of his judgment.”

Kirwan’s impact on the defence of clinical negligence claims

Kirwan provides long awaited clarity for defendants who wish to advance an application to dismiss a claim for delay by clarifying the parameters of the test and moving away from the protracted analysis which emanated from the analysis and consideration of Primor. Of particular note is as follows:

Passage of time and the balance of justice

O’Donnell CJ held that greater weight should be given to the factor of the passage of time as a sufficient basis in and of itself for the dismissal of proceedings. The Supreme Court outlined that a two-year delay is a significant amount of time, and such a lapse of time is harmful to the administration of justice.

When considering ‘access to justice’ arguments in the context of an application to dismiss for delay, the Court further added that emphasis should also be placed on the stress a delay in proceedings can cause defendants:

“A claim left hanging may be just another file in an office to the jaded lawyer, but it is a constant worry to a defendant creating a risk that cannot be resolved, or even easily measured and provided for, and casting a shadow over a business or a career. Justice may require that a claim of wrongdoing be advanced and adjudicated upon, but it also demands that it should be resolved within some reasonable timescale by reference to the event the subject matter of the proceedings.”[1]

Oral evidence in the absence of relevant medical records

As we have seen in Walsh -v- Mater Misericordiae University Hospital & Ashley Poynton[2], and Beggan & Ors -v- Deegan & Ors[3], sufficient contemporaneous medical records deteriorate the requirement for oral evidence in clinical negligence actions; However, in the absence of same, oral evidence may play its role in clinical negligence trials (per Simons J in Rooney -v- Health Service Executive[4]).

Kirwan has placed greater emphasis on the application of the first and second limb of the Primor test i.e. whether the delay is inordinate and whether it is inexcusable. The refined rules in Kirwan now provide that in addition to a four-year period of inactivity, the defendant must be able to show that the claim is dependent on oral evidence. On satisfying same, the Defendant is not required to identify specific prejudice suffered of the kind under the O’Domhnaill principles i.e. that prejudice suffered by the Defendant is likely to lead to a real risk of an unfair trial.

However, as would be expected, specific prejudice such as an impact on the defendant’s memory (as seen in Beggan & Ors -v- Deegan & Ors[5]) will strengthen a case for dismissal.

Conduct of Defendants

Kirwan offers clarity regarding the relevance of a defendant’s inactivity when determining whether a claim should be dismissed. O’Donnell CJ opined that while a Plaintiff’s inactivity is a ‘significant part of the calculation’ when deciding if a claim can be fairly tried, he made clear that “defendants should not be criticised for doing no more than is required to respond to a claim and be ready to meet it if and when it is prosecuted”.

O’Donnell CJ cautioned that if the defendant’s conduct reaches a level of acquiescence or encouragement in the Plaintiff’s delay in prosecuting a claim, this will be relevant in determining whether to dismiss a claim.

Conclusion

• The refined test in Kirwan is a guide to help dismissal applications be more efficient and is not designed to dictate the outcome of marginal cases.
• The inherent jurisdiction of the court and rules of court can co-exist in deciding a case for dismissal.
• A lapse of time is a significant factor in determining whether a case can be fairly tried and should be highlighted and applied as a basis for why a case cannot proceed.
• If there has been four years total inactivity, then the claim should be dismissed if it is dependent on oral evidence.
• If the defendant’s conduct reaches a level of acquiescence or encouragement in the plaintiff’s delay in prosecuting a claim, this will be relevant in determining whether to dismiss a claim.

[1] Paragraph 22

[2] [2023] IECA 276

[3] [2024] IECA 4,

[4] [2022] IEHC 132

[5] [2024] IECA 4

If you would like any further information or advice, please contact Genevieve Hyland or another member of the Healthcare team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice.