The appellant appealed a Master's order dismissing her action for delay.
The action had been struck from the trial list due to the inaction of her first lawyer, and a subsequent motion to restore it was delayed by her second lawyer, who concealed his neglect from her.
On appeal, the Divisional Court admitted fresh evidence detailing the second lawyer's neglect.
The court found the Master made reversible errors by inferring intentional delay without considering the appellant's instructions to her lawyers, and by presuming prejudice due to the expiry of a limitation period.
Applying the conjunctive test from Nissar, the court held the appellant had an acceptable explanation for the delay (solicitor negligence) and the defendants suffered no non-compensable prejudice.
The appeal was allowed and the action restored to the trial list.
