The Panel heard an Appeal of a Decision of a Chambers Justice, which had upheld the Decision of a Master to dismiss an Application for long delay notwithstanding the fact that three years had passed without a “significant advance”. Though Rule 4.33(2) requires an Action to be dismissed after three years of delay, the Chambers Justice and the Master found that the exception provided in Rule 4.33(2)(b) applied.

The Panel noted that Rule 4.33(2)(b) is a manifestation of the general rule that procedural objections must be raised in a timely way. Moreover, Rule 1.5 addresses contraventions of procedural requirements and requires an Application to be filed under the Rule promptly, and it prohibits an Application under the Rule when the applying party has acquiesced to a contravention. The Panel stated that the exception in Rule 4.33(2)(b) should be interpreted holistically in accordance with its wording. The Court can allow an Action to continue where “in the opinion of the Court” a Plaintiff has reason to believe that delay has been waived by a Defendant.

In this case, the parties had filed a detailed litigation plan and made sincere attempts to follow it. Therefore, the Panel ruled that the Chambers Justice and Master were entitled to conclude that the exception in Rule 4.33(2)(b) applied.

In closing, the Panel also addressed the Chambers Justice’s and Master’s conclusion that the Action could not be dismissed pursuant to Rule 4.31. Though both Courts found that inordinate and inexcusable delay had occurred triggering a presumption of significant prejudice, they both found that there was no actual significant prejudice suffered because the case was largely document based. The Panel ruled that this was a finding fact on the record deserving of deference.

The Appeal was dismissed.