In an Action respecting a motor vehicle accident, the Defendant (the “Administrator”) applied to have the Plaintiff’s claim dismissed for long delay pursuant to Rule 4.33. The Administrator argued that the Action was not significantly advanced by the Plaintiff (“Sangha”) between May 31, 2013, and May 31, 2016.

The Action was commenced in October 2004. Between May 31, 2013, and May 31, 2016 Sangha filed two notices of change of representation; the Administrator filed one notice of change of representation; Sangha’s counsel made an informal and without prejudice settlement offer to the Administrator, which was rejected; Sangha filed seventh, eighth, and ninth supplemental Affidavits of Records (which included answers to Undertakings and expert reports); Sangha’s new counsel withdrew as lawyer of record; and a tenth supplemental Affidavit of Records was filed. The Administrator argued that the real issue in the litigation was whether or not an unknown driver struck Sangha’s vehicle, causing the accident. Despite the fact that steps were taken in the litigation, the Administrator argued that there was no progress on the true issue in the dispute.

Master Prowse noted that damages were as much in issue as liability, and a significant advance on damages qualifies as a significant advance in the Action. Master Prowse noted that the Administrator did not make an alternative argument that the Action should be struck on the basis of undue delay under Rule 4.31, and that perhaps it was because no prejudice resulted from the delay. Instead, the Administrator argued, in relation to Rule 4.31, that steps during the “drop dead period” under Rule 4.33 should have been completed earlier. Master Prowse observed that the test “is simply whether there was a significant advance … during the drop dead period or not.” Further, Master Prowse found that there was no evidence suggesting that Sangha was deliberately moving slowly or “taking steps sporadically in order to avoid having the action struck”.

In the result, Master Prowse held that steps were taken between May 31, 2013 and May 31, 2016, which significantly advanced the Action with respect to the issue of damages during the “drop dead” period. The Defendant’s Application was dismissed.