The appellant appealed the dismissal of a motion to restore a personal injury action to the trial list seven years after it had been struck.
The Court of Appeal held that a plaintiff seeking restoration under rule 48.11 bears the burden of showing both an acceptable explanation for the litigation delay and that the defendant would suffer no non-compensable prejudice if the action proceeded.
On the record, there was no satisfactory explanation for the prolonged delay, and the respondent demonstrated actual prejudice arising from unavailable medical records, the destruction of discovery recordings, and faded witness memory.
Motions to adduce fresh evidence were also dismissed because the proposed evidence could not reasonably have affected the result.
