The Plaintiff appealed the Decision of a Master which dismissed the Plaintiff’s Action under Rule 4.33. Clackson J. referred to recent authority which set out the functional analysis that should take place in determining if an Action has been “substantially advanced” in order to avoid dismissal under Rule 4.33. The functional test requires the Court to view the “whole picture of what transpired in the three year period” prior to the Application. In this case, the Plaintiff was a passenger in a vehicle driven by the Defendant and there were live issues as to whether the owner of the vehicle had consented to the Defendant driving the vehicle. If the vehicle was operated with the consent of the registered owner then the insurer of the owner would be liable. If not, then the Motor Vehicle Accident Claim Fund (the “Accident Fund”) would be liable.

Justice Clackson noted that Rules 1.2(1), 4.1 and 4.2(b) exhort all parties to attend to their litigation in a timely and cost-effective way. In 2013 and 2014 respectively, the Plaintiff’s counsel had proposed a Trial of the discrete issue of consent and additionally proposed to settle the matter for a specific quantum. Responses to these proposals were received from the Accident Fund as late as January of 2015. While neither proposal was successful, Clackson J. determined that either proposal, on acceptance, would have advanced the litigation. Clackson J. concluded that the settlement discussions and the issue resolution proposal occurred within the three years preceding the Application and, therefore, the Action should not have been dismissed. The Appeal was granted and the Master’s Order was vacated.