IESC 18 — IESC 18 — Supreme Court

AN CHÚIRT UACHTARACH

THE SUPREME COURT

O’Donnell C.J. Charleton J. O’Malley J. Hogan J. Murray J. Collins J. [S:AP:IE:2023:00001] [2026] IESC 18

BETWEEN/

BRENDAN KIRWAN

PLAINTIFF/APPELLANT

AND

MARGUERITE CONNORS TRADING UNDER THE STYLE OF MJ O’CONNOR

SOLICITORS, MJ O’CONNOR SOLICITORS, EAMONN BUTTLE, FILBECK

LIMITED, NORMAN BUTTLE, MARY BUTTLE, HILARY BUTTLE, JOHN

O’LEARY TRADING UNDER THE STYLE OF MJ O’CONNOR SOLICITORS,

BRID O’LEARY TRADING UNDER THE STYLE OF MJ O’CONNOR

SOLICITORS

DEFENDANTS/RESPONDENTS 2

RULING of the COURT on the issue of costs delivered the 23rd day of March 2026

1. This appeal came before this Court on foot of a grant of leave pursuant to Article 34.5.3⁰

of the Constitution. The appeal itself was in respect of an order made by the Court of Appeal

on 13 December 2022: see [2022] IECA 242. For reasons explained in a detailed and

comprehensive judgment (Power J. with whom Woulfe and Binchy JJ agreed), that Court

dismissed an appeal which had been taken against the decision of Meenan J. in the High

Court on 2nd September 2019: see [2019] IEHC 954. The effect of these two judgments

was to dismiss all proceedings (and, in one case, a motion to set aside a default judgment)

on the grounds of inordinate and inexcusable delay.

2. The appeal was heard initially by a five-judge panel of this Court in April 2024. We later

decided to have the matter re-argued before an extended composition of seven judges in

November 2024. We also invited the Attorney General to participate in the appeal, which

he did. Judgment was ultimately delivered in May 2025 dismissing the appeal: see Kirwan

v. Connors [2025] IESC 21. Mr. Kirwan then subsequently applied to have this judgment

set aside, invoking the SC17. That application was rejected.

The background to the appeal

3. The background to the appeal is well known to the parties and is, in any event, set out in

the judgments of the Court. In summary, however, the proceedings themselves arose from

a property transaction entered into between Mr. Kirwan and Mr. Buttle (a defendant in the

first and second sets of proceedings and the sole defendant in proceedings bearing record

No. 2012 No. 2995S) in July 2006, although the precise date of the contract is itself

disputed. The essence of the agreement was that Mr. Buttle agreed to buy certain lands

from Mr. Kirwan subject to the former obtaining planning permission. In a related

agreement Mr. Buttle agreed to advance Mr. Kirwan the sum of approximately €1m., which 3

sum was to be repaid either when the contract was terminated, or planning permission

secured. A mortgage deed was executed on 5 July 2006 giving Mr. Buttle security over

certain lands belonging to Mr. Kirwan.

4. Following the 2008 property crash, this transaction did not proceed, The €1m. debt was

subsequently assigned to a company called Filbeck Ltd. (of which Mr. Buttle is a director)

and notice of this was given to Mr. Kirwan in November 2011. Filbeck ultimately obtained

judgment against Mr. Kirwan for some €1m. in November 2012, no appearance having

been entered by the defendant, Mr. Kirwan then issued a motion in those proceedings

seeking to have the judgment set aside. That motion was adjourned by the High Court in

December 2013 to await the outcome of the other plenary actions in proceedings which he

had issued in August 2012 and May 2013 against the various defendants.

5. In August 2012 Mr. Kirwan sought judgment for some €3m.against Mr. Buttle in summary

summons proceedings (2012, 2995S) arising from the failed contract. Mr. Buttle sought in

turn to have those proceedings stayed or dismissed and that motion was itself also

adjourned in December 2013 to await the outcome of the other action brought by Mr.

Kirwan. One consequence of this was, as Power J. noted in her judgment, that the adverse

effects of the Fillbeck judgment was effectively stayed for almost five years.

6. Mr. Kirwan had by that stage already commenced a plenary action in May 2013 in which

he repeated his claims against Mr, Buttle/Filbeck, but in which he also sued the various

solicitor defendants arising from the property transaction, together with Ms. Connors, the

legal executive who had been attached to MJ O’Connor solicitors.

7. No steps were taken in those proceedings by Mr. Kirwan until Mr. Buttle issued a motion

on 17 August 2018 seeking to have the 2013 proceedings dismissed for want of prosecution.

In November 2018 Mr. Kirwan also sought to re-enter the adjourned motion in which he

sought to have the proceedings against him struck out. 4

8. On the same day, however, Mr. Kirwan brought a motion in the 2013 proceedings, seeking.

inter alia, an order striking out the defence of the Buttle defendants for “want/lack of fact

and truth” and “want/lack of procedure”. On 15 November 2018 the solicitor defendants

then issued a motion pursuant to Ord. 122, r. 11 RSC and/or the inherent jurisdiction of the

Court, also seeking to have the 2013 proceedings dismissed for want of prosecution.

Additionally, or in the alternative, they sought an order striking out the 2013 proceedings.

The High Court judgment

9. In a reserved judgment dated 2 September 2019 ([2019] IEHC 954) Meenan J. concluded

that the proceedings should be struck out on the grounds of inordinate delay. One of the

justifications for the delay was that it was said that a notice for particulars filed by Mr.

Kirwan on 10th January 2014 was still outstanding. While there was a dispute was to

whether this had in fact ever been served, Meenan J. nonetheless found that Mr. Kirwan

should have followed up in respect of any default of pleading. There was also a dispute

regarding whether Mr. Kirwan had access to the originals of his original solicitors’ file,

long before that a copy of the file had been transmitted to his new solicitors in April 2010.

10. Having rejected his explanation for the delay, Meenan J held that there had been inordinate

delay which had not been excused. Noting that there had been demonstrable prejudice to

the defendants by reason of the delay, he concluded that the balance of justice favoured the

dismissal of the various proceedings.

The Court of Appeal

11. The plaintiff’s appeal against this decision was dismissed by the Court of Appeal in an

exceptionally through and comprehensive judgment delivered by Power J. on 26th October

2022: [2022] IECA 242. In her judgment Power J. stressed that this Court’s decision in

Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459 was concerned not so much with

the merits of the case per se, “but with the rights and wrongs of allowing the proceedings 5

to remain in being after a considerable period of time has elapsed and without much

progress.” Power J. held that the trial judge was fully entitled to conclude that the delay

was inordinate given that the entire proceedings had been adjourned in 2013 in order to

enable him to advance what (in effect) was a type of counter-claim to the judgment which

Mr. Buttle had first obtained the previous year. Noting that Mr. Kirwan had done nothing

at all to advance his claim for almost five years despite having made serious allegations

against other parties, Power J. concluded that Meenan J.’s finding that the delay was

inordinate could not be impugned. She observed [at 98] that “he was obliged to move with

due expedition, particularly in circumstances where he had issued proceedings many years

after the disputed property transaction in question”. Yet [at 99] “having left the case

languish in abeyance for several years, he sought to raise and litigate the merits of it only

when the defendants sought to dismiss it was for want of prosecution”.

12. Power J. then turned to the second limb of the Primor test, namely, whether the delay could

be excused. She examined those arguments in detail and concluded that the delay should

not be excused.

The decision of this Court

13. This Court in its decision of May 2025 decided to dismiss the appeal. Four separate

judgments were delivered by O’Donnell C.J., Hogan, Murray and Collins JJ., the latter

dissenting in part. All members of the Court were agreed that the delay of more than four

years between December 2013 (the date of the adjournment) and August 2018 (the date of

the issuing of the strike out motion) was excessive and that such delay could not be excused

in the circumstances. All members of the Court were agreed that lengthy delay in itself

could justify the dismissal of the proceedings.

14. The majority judgments concluded that the Primor test should be re-formulated, so that it

now operated in a stricter and more structured fashion, with delays being measured in the 6

first instance by reference to the two year period in Ord. 122, r. 11. On any view, the

judgments in Kirwan represent the most important decision in this area since Primor itself.

The costs of the appeal

15. The issue of costs had been left over pending the determination of the SC17 issue. Now

that this has been resolved adversely to Mr. Kirwan, there remains the issue of costs of the

main action. We recall, of course, that, reflecting the importance of the issue, the appeal

was re-argued in November 2024 with an extended composition of seven judges and with

the presence of the Attorney General. This fresh re-hearing added to the costs of the parties.

Mr. Kirwan

16. So far as costs are concerned, Mr. Kirwan had obtained the benefit of the Court’s scheme

so that he had the benefit of solicitors and counsel. He is now acting for himself with his

son’s assistance. His submissions are replete with complaints about how the Court dealt

with the merits of the case. He further contends that the Court acted without jurisdiction by

sitting as a court of seven.

The solicitor defendants

17. The solicitor defendants maintain that they have been entirely successful in the proceedings

and seek costs (in all courts) as against Mr. Kirwan.

The Buttle defendants

18. They contend that they have been successful in all courts. They also address the fact there

was a second hearing in this Court. While they acknowledge that there was a public interest

dimension to this, they say that this fact alone should not debar them from obtaining costs

as against Mr. Kirwan.

The Court’s conclusions on costs

19. In assessing the issue of costs, we would propose to distinguish between the costs of the

High Court and the Court of Appeal on the one hand and the costs in this Court on the 7

other. The High Court and Court of Appeal costs represent standard costs orders in favour

of both defendants which resulted from the routine application of what at that point was

well-established case-law. We see no reason to disturb these costs now that the appellant,

Mr. Kirwan, has been unsuccessful in this appeal and the decision of those courts to strike

out the proceedings has been affirmed.

20. The costs in this Court are of a slightly different character. There was to some extent a

public interest element in those costs in that this happened to be the case in which Primor

was re-examined. The importance of this issue is reflected in the fact that the case was re-

argued before an extended composition of this Court with seven judges. In these

circumstances we consider that we should affirm the existing High Court and Court of

Appeal costs order (i.e, awarding costs in both courts to both sets of defendants), while

making no order regarding the costs in this Court. The latter decision reflects the public

interest element of the Supreme Court appeal and the fact that it was reasonable for Mr.

Kirwan to have the issue fully determined before us.

The position of the Attorney General

21. The Attorney General was joined to the appeal to this Court qua notice party, so that he

was in effect acting as a form of amicus curiae. This is by now a fairly frequent occurrence,

and this Court will often invite the Attorney to participate in this fashion in cases involving

major questions that have significant implications for the public at large. This was one such

case.

22. The standard order in such cases is that the Attorney abides his own costs. We see no reason

to depart from that practice in the present case, so that there will be no order for costs either

as against or in favour of the Attorney General.

Conclusions 8

23. It follows, therefore, that, for the reasons stated, the Court will confirm the existing orders

for costs in favour of both defendants in both the High Court and the Court of Appeal. The

Court will, however, make no order for costs in this Court. There will be no order for costs

either as against or in favour of the Attorney General.