Substance Over Form: A Warning Letter Does Not Constitute A “proceeding” In Cases Of Dismissal For Delay

In a judgment delivered on 30 July 2026 by Mr Justice Coffey in O’Shaughnessy v Health Service Executive, RDJ acted for the Defendant wherethe High Court, in applying the principles set out by the Supreme Court in Kirwan v Connors, examined the various steps taken by both the Plaintiff and Defendant which ultimately led to a successful application by the Defendant for dismissal for want of prosecution. 

A useful summary of the Kirwan Supreme Court principles previously set out by the RDJ Dispute Resolution team can be found here. 

Background

The Plaintiff underwent surgery in June 2014. It was alleged that the surgery was performed without informed consent and that the Defendant was negligent in preparing the Plaintiff for the procedure. 

A Personal Injuries Summons only issued in November 2018 and was not served until October 2019. The Defendant entered an Appearance in November 2019 and subsequently made repeated requests for Particulars of Negligence, Particulars of Personal Injury, and Affidavits of Verification. Updated Particulars were eventually served and Affidavits of Verification filed on 22 September 2021. On the Court’s analysis, that filing constituted the last substantive procedural step taken by the Plaintiff prior to the issuing of the Defendant’s Motion to Dismiss on 5 February 2026 - a gap of approximately four years and four months.

In October 2023, the Plaintiff’s solicitors sent a 28-day warning letter threatening an application for judgment in Default of Defence. No such application was made until 31 March 2026, almost two and a half years after the letter, and only after the Defendant had already issued a Motion to Dismiss. As at the hearing date of the Defendant’s Motion, no pleading identifying the personal injuries alleged or their causal connection to the negligence had been delivered.

The Legal Framework – Kirwan v Connors

The Court examined the principles laid out by Supreme Court in Kirwan v Connors and noted that the Supreme Court had emphasised the significance of Order 122, rule 11 of the Rules of the Superior Courts and identified approximately two years and four year of inactivity as respective important milestones in assessing applications for dismissal for want of prosecution:

• Two Years of Inactivity: A claim may be dismissed at this point, but dismissal will ordinarily require some additional factor beyond the period of inactivity alone such as specific prejudice to the Defendant.
• Four Years of Inactivity: Where proceedings depend substantially on oral evidence, dismissal becomes the presumptive outcome. The burden shifts to the Plaintiff to demonstrate compelling reasons why the proceedings should nevertheless be permitted to continue. Separate proof of specific prejudice is not ordinarily required at this stage. 

The Court also confirmed the following ancillary principles drawn from Kirwan and earlier case law:

• Responsibility for prosecuting proceedings rests with the Plaintiff. A Defendant is not ordinarily to be criticised for failing to advance the proceedings on the Plaintiff’s behalf, unless it has acquiesced in or encouraged the delay.
• Difficulties within a solicitor’s practice, do not ordinarily provide a legally sufficient excuse for prolonged inactivity.

What Constitutes a “Proceeding” Under Order 122, Rule 11?

A central question that arose was whether the warning letter of October 2023 constituted a “proceeding” capable of interrupting the period of inactivity under the Rule. Coffey J held that it did not, for the following reasons:

1. The letter did no more than notify the Defendant that an application for judgment in default would be brought if a Defence was not delivered. The threatened application was never made. The letter neither advanced the proceedings nor altered the procedural position of the parties, and lacked the formality and significance required to constitute a “proceeding” within the meaning of the Rule.
2. The language of Order 122, rule 11 itself is instructive: the Rule expressly provides that “a motion … on which no order has been made shall not be deemed a proceeding within this rule.” If a motion on which no order is made does not qualify, then a letter merely threatening such a motion, where the motion is never brought, cannot enjoy a higher procedural status.
3. Applying the substance-over-form approach articulated in Kirwan, the Court assessed whether the step had a substantive effect on the litigation. The warning letter contained no evidence, advanced no pleading, invoked no court jurisdiction and resulted in no order. Viewed as a matter of substance, it was not capable of interrupting inactivity or resetting the clock under the Rule.

Was the Delay Excusable? 

The Plaintiff’s solicitors advanced several explanations for the period of inactivity and the Court while accepting that each was genuine held that the explanations did not excuse the delay. The Court further observed that the October 2023 warning letter demonstrated that the Plaintiff’s solicitors were aware that a procedural step was required.

The Dependence on Oral Evidence & Examination of Acquiescence and the Balance of Justice

The allegations in the action which included informed consent, the explanation of treatment options, the discussion of risks and benefits, and the circumstances surrounding the surgery in 2014 were found to be inherently dependent upon oral testimony. The proceedings therefore fell squarely within the category of case identified in Kirwan as being particularly susceptible to the effects of prolonged inactivity

The Court also found that the Defendant had not acquiesced in the delay. On the contrary the evidence demonstrated repeated requests for Particulars, repeated requests concerning expert evidence, express reservation of the Defendant’s legal position, and continuing efforts to obtain either discontinuance or progression of the proceedings.

Where the proceedings had been characterised by substantial delay from inception, were substantially dependent upon oral evidence and the Plaintiff had not demonstrated compelling reasons why the proceedings should nevertheless be permitted to continue, the Court was satisfied that the balance of justice favoured dismissal of the proceedings. 

Conclusion

This decision provides a clear and practical application of the Kirwan framework to a medical negligence claim characterised by multi-layered delay. The proceedings fell squarely within the category of case identified in Kirwan as being particularly susceptible to the effects of prolonged inactivity.

The judgment underscores that four years of inactivity in oral-evidence-dependent litigation will, in the absence of compelling countervailing reasons, lead to dismissal. It also resolves an important practical question: a warning letter that is not followed by the threatened application carries no procedural weight and does not interrupt the running of inactivity under Order 122, rule 11. Practitioners should take particular note of both the substance-over-form analysis and the Court’s rejection of solicitor explanations as an excuse for delay of this scale.

Footnotes

1. Record No. 2018/9538P

2. [2025] IESC 21