The Defendants applied to have the Action dismissed for delay pursuant to Rule 4.33 or, alternatively, Rule 4.31. When deciding whether the Action should be dismissed pursuant to Rule 4.33, Master Prowse noted that, while there had been a three year or more delay, the Defendants consented to a litigation plan and had agreed to schedule Questioning following the delay. The litigation plan was subsequently not followed and the Questioning had been rescheduled.

On these facts, Master Prowse determined that Rule 4.33(2)(b) applied. The relevant test under Rule 4.33(2)(b) is whether the participation warrants the Action continuing, not whether there has been a significant advance in the Action. Master Prowse specifically rejected the argument that participation should not be counted where the commitment documented in the litigation plan was not fulfilled.

Master Prowse also declined to dismiss the Action pursuant to Rule 4.31. Although Master Prowse found there was inordinate and inexcusable delay because Questioning did not take place in the first seven years of the litigation, there was no significant prejudice because the critical evidence on the facts of the case was preserved in documents and drawings. Master Prowse dismissed the Application and directed the parties to revise the litigation plan and file it within 30 days.