Civil Procedure - Default by Plaintiff Flashcards
Which rule relates to the default of plaintiff or applicant?
Rule 280
When can a defendant or respondent apply for an order of the court dismissing the proceeding for want of prosecution?
Rule 280(1)
When the plaintiff or applicant is required to take a step as outline in these rules or comply with an order of the court within a stated time and they do not do what is required of them.
Other than dismissing the proceeding, what can the court do?
Rule 280(2)
The court can dismiss OR make another order it considers appropriate.
If an order is made dismissing the proceeding for want of prosecution, can this order be set aside?
Rule 280(3)
Only on appeal OR if the parties agree to it being set aside.
OR
(4) if the court considers it appropriate to do so without the need for an appeal.
Is there a requirement to show prejudice to the defendant?
No the test is lower.
What factors will the court take into account in determining if the interests of justice require a case to be dismissed?
- how long ago the events alleged in the SOC occurred
- was there/ how long was delay between alleged events and commencement of proceedings
- how long ago litigation was commenced or COA added
- what prospects of success does the plaintiff have
- has there been disobedience of court orders/ directions
- has the litigation been characterised by periods of delay
- is the delay attributable to plaintiff, defendant or both
- is the impecuniosity of the plaintiff responsible for the delay
- is the defendant responsible for the plaintiff’s impecuniosity
- would striking out the plaintiffs claim conclude the litigation between the parties
- how far has litigation progressed
- is delay caused by dilatory actions of plaintiff’s lawyers
- is there a satisfactory explanation for the delay
-has the delay resulted in prejudice to the defendant leading to an inability to ensure a fair trial
