The Defendant in a personal injury Action applied to dismiss the Claim for long delay under Rules 4.31 and 4.33. The parties agreed to a litigation plan in October 2013 and the issues in this Application concerned whether the litigation plan was a significant advance in the Action in order to re-start the three year clock under Rule 4.33.

Master Robertson noted that under Rule 4.31 the Court may dismiss a Claim if it determines that the delay has resulted in significant prejudice; when the Court finds that the delay is inordinate and inexcusable, the delay is presumed to have resulted in significant prejudice. Under the “drop dead” Rule, Rule 4.33, the test is whether three or more years has passed without a significant advance in the Action, in which case the Action must be dismissed. Master Robertson observed that the analysis of when delay is inordinate and inexcusable under Rule 4.31 must bear in mind the particular facts of the case, and Rule 1.2(2)(b) which states that the Rules “are intended to be used … to facilitate the quickest means of resolving a claim at the least expense”. The onus to show that there is a credible excuse for delay lies upon the delaying party. Master Robertson observed that no excuse was given here. The subsidiary questions under Rule 4.31 then were whether the delay was inordinate, and whether by entering into the litigation plan the Defendant effectively “excused” prior delay. As to Rule 4.33, if the litigation plan itself did not significantly advance the Action, then there had clearly been a three year period during which the Action was not significantly advanced. The question was therefore whether the litigation plan itself significantly advanced the Action.

Master Robertson noted that entering into a litigation plan, where it is not ordered by the Court, is just “formalized” talk. It is only if the steps contemplated are actually done that the litigation plan takes on meaning. Otherwise, there would be no consequence to a procrastinating Plaintiff who agrees to a litigation plan, and then simply defaults. That would allow a Plaintiff to “buy” almost three years before another step would have to be taken, which is what happened in this Action. In contrast, where a litigation plan has been ordered by the Court under Rule 4.4(2), the party in default is then in violation of a Court Order. The granting of an Order setting dates is itself a step. Functionally, the litigation plan was used in this case as an instrument of delay. In the result, Master Robertson allowed the Application because three years had passed without a significant advance in the Action and because the inference was clear after 14 ½ years that there had been an inordinate and unjustified delay, with no evidence to rebut the presumption of prejudice.