One Year Post-Kirwan – O’Shaughnessy v HSE and the Courts’ Approach to Delay

Twelve months after the Supreme Court’s decision in Kirwan v Connors & Ors[i] (“Kirwan”), its impact on Irish Court procedure remains significant. The judgment replaced the Primor test with a structured, timeline-based framework and signalled a stricter approach to litigation delay.

You can find our previous in-depth article on the decision here.

A Shift in Approach

In Kirwan, the Supreme Court elevated the passage of time as a central factor in dismissal applications and reduced the requirement for defendants to demonstrate specific prejudice, particularly in long-delay cases. The Court reaffirmed that delay itself may justify dismissal under both the court’s inherent jurisdiction and Order 122, Rule 11.

A framework based on periods of inactivity was created (<2 years, 2+ years, 4+ years and 5+ years). Plaintiffs remain responsible for progressing claims, while defendants are only penalised where they contribute to delay.

Judicial Developments

Over the past 12 months, subsequent High Court decisions confirm a strict application of Kirwan:

• Holmes v Ireland [2026][ii] saw the dismissal of proceedings after over five years of inactivity, with the Court holding that delay alone justified dismissal.
• In Charleton v Scriven [2026][iii] the Court refused to revisit a pre-Kirwan decision, confirming that the new test does not undermine the finality of existing orders.
• In Kelly v Store All Logistics Ltd [2026][iv], the Court confirmed that Kirwan sits alongside, rather than limits, the broader abuse of process jurisdiction and emphasised that litigants benefiting from interlocutory relief must proceed with expedition.
• In Doyle v Commissioner of An Garda Síochána [2025][v], “inactivity” was clarified as the absence of formal procedural steps, not informal actions such as correspondence.

These decisions confirm an increasingly strict approach interpreting delay.

O’Shaughnessy v Health Service Executive

The most recent decision of O’Shaughnessy v HSE[vi] (“O’Shaughnessy”) was delivered by the High Court on 30 July 2026.  It confirms the strict approach now being taken to delay and highlights the risks facing plaintiffs who fail to actively progress proceedings.

The proceedings arose from spinal surgery performed on the Plaintiff in June 2014. The Plaintiff alleged a lack of informed consent and negligent preparation for the procedure. Proceedings were commenced in 2018, more than four years after the surgery, and were served in October 2019.

Despite repeated requests from the Defendant, particulars of the claim and affidavits of verification required under the Civil Liability and Courts Act 2004 were not furnished until September 2021. The Defendant subsequently applied to dismiss the proceedings under Order 122, Rule 11, arguing that this was the last substantive step. The Plaintiff sought to rely on a warning letter for judgment in default of defence issued in October 2023 as a subsequent “proceeding“.

Application of Legal Principles

Mr Justice Coffey referred to Kirwan, noting that where there has been inactivity of approximately four years and the case depends substantially on oral evidence, dismissal generally becomes the default position unless compelling reasons exist to permit the proceedings to continue.  The Court emphasised that proof of specific prejudice is not ordinarily required once the four-year threshold is crossed in a case dependent on witness recollection.  Responsibility for advancing litigation remains with the plaintiff.

What constitutes a Proceeding?

The Plaintiff argued that a warning letter dated 23 October 2023 constituted a “proceeding” for the purposes of Order 122, Rule 11. The Court rejected this argument, holding that the letter merely threatened a future application for judgment in default of defence, which was never pursued. As it neither advanced the litigation nor altered the parties’ procedural position, it lacked the substantive effect necessary to interrupt the running of time.

Applying Hogan J’s “substance-over-form” approach in Kirwan, the Court held that the correspondence could not be regarded as a substantive procedural step.

Length of Delay & Oral Evidence

The Court found that the last substantive step occurred in September 2021, resulting in approximately four years and four months of inactivity before the Defendant’s motion in February 2026, placing the case squarely within the Kirwan category where dismissal is generally expected.

The Plaintiff cited the dissolution of a legal partnership, staffing difficulties, Covid-19, bereavement and maternity leave. The Court accepted these were genuine but found they explained only part of the delay. Particular weight was given to the fact that the dispute turned on oral evidence, a category of case identified in Kirwan as especially vulnerable to delay.  By the hearing, the relevant events were likely to be more than twelve years old.

The Court rejected any suggestion that the defendant had acquiesced in the delay, noting its repeated requests for particulars and efforts to progress the proceedings.

Final Thoughts

O’Shaughnessy reinforces the message emerging from the growing body of post-Kirwan case law: delay will rarely be excused.  The decisions outlined above, confirm a clear shift towards stricter enforcement of procedural timelines and greater scrutiny of inactive proceedings. Plaintiffs who fail to advance their claims risk dismissal, particularly where the dispute depends heavily on witness recollection and the passage of time undermines the administration of justice.

If you have any questions regarding the information discussed in this article, please contact Niamh Loughran, Sean Barrett and Alexandra Wilde.

[i] Kirwan v Connors [2025] IESC 21

[ii] Holmes v Ireland and Ors [2026] IEHC 2

[iii] Charleton and Cotter v Scriven [2026] IECH 41

[iv] Kelly v Store All Logistics Ltd [2025] IEHC 653

[v] Doyle v Commissioner of An Garda Síochána [2025] IEHC 589

[vi] O’Shaughnessy v Health Service Executive [2026] IEHC 568