Can a motion to dismiss for delay be successful?

The test in Armstrong v. McCall, supra for motions to dismiss for delay can properly be used on a motion to restore the action to the trial list. Applying that test, the plaintiff’s delay in the matter cannot be characterized as intentional and contumelious. Although there is a period of 9.5 months of unexcused delay following the expiry of the limitation period, which gives rise to a presumption of prejudice, the plaintiff has rebutted that presumption by providing evidence that both the viva voce and the documentary evidence is still available and the defendant has led no evidence of actual prejudice. Consequently, the delay does not give rise to a substantial risk that a fair trial might not be possible. The motion therefore succeeds and the action is hereby restored to the trial list. The parties shall obtain mutually convenient dates for a pre-trial conference and trial from the trial co-ordinator within 30 days.