How delay can affect a Medical Negligence Claim – Why the recent Kirwan v Connors Supreme Court Decision matters to anyone pursuing a claim

If you are thinking about bringing, or are already pursuing, a medical negligence claim in Ireland, it’s useful to understand a recent Supreme Court decision that could affect your case — Kirwan v Connors [2025] IESC 21.

This case is not  about the merits of medical negligence itself.  However, the Kirwan case changes the rules about delay and what happens if a case sits idle in the courts for a long time without active progress. This is something to be considered in medical negligence claims, which often involve lengthy investigations, medical records, expert reports and understandably, delays.

Old Law vs New Law — What Changed?

Before Kirwan

Until this decision, Irish courts applied a test called the Primor test (after Primor plc v Stokes Kennedy Crowley from 1996). Under that test, a defendant had to show three things before a case could be struck out for delay:

1. Inordinate delay – the length of time was excessively long,
2. Inexcusable delay – there was no good reason for the delay, and
3. Prejudice – the defendant was seriously disadvantaged by the delay (for example, loss of key witness memory, evidence that has disappeared).

This prejudice requirement meant that it was possible that even if a case had dragged on for years, a claim could survive if there wasn’t clear evidence of prejudice to the defendant.

After Kirwan

The Supreme Court has now revised that approach. It reduced the emphasis on the old three-part Primor test. In practical terms:

The Supreme Court proposed a revised test as follows:

Delay of 2+ years: The court may dismiss the case for delay, but this is not automatic. The defendant would need to show some real disadvantage caused by the delay, or other strong reasons why the case should not continue. If the court allows the case to continue, it can impose strict deadlines, and failure to meet those deadlines could lead to dismissal.

Delay of 4+ years: If the case relies on people giving evidence in court, it should be dismissed unless the plaintiff can give a strong and convincing explanation for why it can still be fairly tried. After such a long time, the court assumes memories will have faded and witnesses may no longer be willing or able to testify.

Delay of 5+ years: The court has wide discretion to dismiss the case unless there is a very strong reason of fairness or justice to let it continue. Such reasons might include:

• the plaintiff facing serious personal, social, educational or financial disadvantage;
• rare public-interest cases where the issue is important beyond the parties involved; or
• serious wrongdoing by the defendant during the case that contributed to the delay.

Delay alone can be fatal and this applies to all civil claims

Under the new approach, the passage of time itself matters, and courts have a lower threshold now for dismissing dormant cases. In other words, even if the defendant can still defend the case, a judge may still decide that too much time has passed for the claim to be fair and workable.

Although Kirwan was a professional negligence case involving a solicitor, the new framework applies in personal injury and medical negligence contexts.

Conclusion

The Kirwan decision sends a clear message that the courts are much less tolerant of delay in civil cases. If you are pursuing a medical negligence claim, please be proactive and work with your legal team to ensure your case is progressing. This is very important as elapsed time alone may now be enough to stop the case proceeding.

Contact us at Cantillons Solicitors at +353 (0)21 4275673 or info@cantillons.com if you would like more information.

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