The Defendants appealed the Decision of Master Laycock to not strike the proceedings under the “drop dead” Rule. The “drop dead” date was April 25, 2011, and an Application to impose a Litigation Plan was set for April 21, 2011. The Application was set over to May 18, 2011 and the Parties agreed that this adjournment could not be used to dismiss the Action pursuant to Rule 4.33.

In the May 18, 2011 Application, Master Laycock made an Order implementing a Litigation Plan that set dates, outside of the “drop dead” date, for responses to Undertakings, questions in relation to those responses and the filing of a Form 37.

Veit J. found that Master Laycock erred in finding that a Litigation Plan in a standard case is a required step and thus materially advances the Action, because in a standard case a Litigation Plan is optional. However, Veit J. noted that Master Laycock had continued the analysis to determine if the Action had been significantly advanced, and that the decision of Master Laycock was reasonable.

Veit J. found that the Action was significantly advanced by setting dates by which Questioning on answers to Undertakings would be completed and a Form 37 would be filed. Veit J. noted that a specific exception in Rule 4.33 is when the delay is provided for in a Litigation Plan.