The plaintiff brought a motion under Rule 48.11(b) of the Rules of Civil Procedure for leave to restore a personal injury action to the trial list after it had been struck for failing to obtain pre‑trial and trial dates.
The court applied the four‑part test governing delay, including whether the delay was intentional or contumelious, whether it was inordinate and inexcusable, whether the presumption of prejudice was rebutted, and whether actual prejudice was demonstrated.
The court found a delay of two years and eight months in seeking pre‑trial and trial dates and concluded the delay was deliberate or, at minimum, inordinate and unexplained.
The plaintiff failed to provide evidence rebutting the presumption of prejudice arising from the delay.
The motion to restore the action to the trial list was therefore refused, although a related amendment correcting a misnomer was permitted.