Acts and Regulations

Rule-26 - DISMISSAL OF ACTION FOR DELAY

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Current to 1 January 2024
DISPOSITION WITHOUT TRIAL
RULE 26
DISMISSAL OF ACTION FOR DELAY
26.01Where Available
A defendant who is not in default under these rules or under an order of the court, may apply to have the action dismissed for delay where the plaintiff has failed
(a) to serve his Statement of Claim on all the defendants within the time limited for so doing,
(b) to note in default any defendant for failure to file and serve his Statement of Defence, within 30 days after such default, or
(c) to set the action down for trial within 6 months after the close of pleadings.
26.02Effect of Dismissal on Counterclaim
Where an action against a defendant who has counterclaimed is dismissed for delay, the defendant may within 30 days after the dismissal deliver a Notice of Election (Form 25C) to proceed with the counterclaim, and if the defendant fails to do so, the counterclaim shall be deemed to be discontinued without costs.
86-87
26.03Effect of Dismissal on Cross-Claim or Third Party Claim
Where an action is dismissed for delay, a cross-claim or third party claim shall be deemed to be dismissed with costs payable by the plaintiff, unless the court orders otherwise.
26.04Effect on Subsequent Action
(1)The dismissal of an action for delay shall not be a defence to a subsequent action unless so provided in the order dismissing the action.
(2)Where a subsequent action in respect of the same subject matter is brought before payment of the costs of an action dismissed for delay, the court may order a stay of the subsequent action until those costs have been paid.
26.05Failure to Set Action Down for Trial Within One Year
(1)Each clerk shall maintain a list of all actions in which a Statement of Defence is filed in his office. An action shall be removed from that list only when all questions or issues in the action have been set down for trial or the action has been terminated.
(2)When an action has been on the list referred to in paragraph (1) for one year, the clerk shall send a Request for Status Report (Form 26A) to the plaintiff’s solicitor of record or to the plaintiff if the plaintiff does not have a solicitor of record and shall send a copy thereof to each other solicitor of record and to any party who does not have a solicitor of record.
(3)The plaintiff’s solicitor of record or the plaintiff, as the case may be, shall respond to the Request for Status Report within thirty days and shall send a copy of his response to each other solicitor of record and to any party who does not have a solicitor of record.
(4)The clerk shall present the response of the plaintiff’s solicitor of record or of the plaintiff, as the case may be, to a judge who shall determine whether a Notice of Status Hearing (Form 26B) should be issued and the judge
(a) may direct the clerk to issue a Notice of Status Hearing, or
(b) may, if satisfied with the status of the action, direct the clerk to send another Request for Status Report at a fixed date if the status of the action is unchanged.
(5)When the plaintiff’s solicitor of record or the plaintiff, as the case may be, does not respond to a Request for Status Report or when a judge so directs, the clerk shall
(a) obtain from the court a date for a status hearing, and
(b) at least sixty days before the date obtained under clause (a) mail a Notice of Status Hearing to the solicitors of record and to any party who does not have a solicitor of record.
(6)The clerk shall certify to the court the names and addresses of the solicitors of record and the parties to whom he sends a Notice of Status Hearing and the date of sending it.
(7)Unless the action has been set down for trial or terminated before the date fixed for the status hearing, the solicitors of record or their properly instructed agents and the parties who do not have solicitors of record shall attend. The parties who have solicitors of record may attend on the status hearing. Where a party who has a solicitor of record does not attend, the solicitor shall, on the status hearing, file proof that a copy of the notice was served on his client.
(8)On the status hearing, the court may
(a) order the action to be set down for trial within a specified time,
(b) adjourn the status hearing to a fixed date,
(b.1) dismiss the action, or
(c) make such other order as may be just.
(9)Unless the action is set down for trial or terminated within the time so ordered, the clerk shall dismiss the action for delay and shall notify all parties of the dismissal.
(10)A dismissal of an action under clause (8)(b.1) or paragraph (9) shall be with costs unless the court orders otherwise.
85-34; 92-3; 2006-46; 2023-8
26.06Application to Counterclaims, Cross-Claims and Third Party Claims
Subject to Rules 28, 29 and 30, this rule applies, with any necessary modification, to a counterclaim, a cross-claim or a third party claim.