While construction law lawyers are aware of the two year limitation period contained in section 37 of the Construction Lien Act, on January 1, 2015, significant changes were made to Rule 48 of the Rules of Civil Practice, which require all litigation lawyers to modify their tickler systems for their non-lien actions. In addition to this amendment, a new paragraph was added to the Statement of Claim form which warns the parties of the Rule 48 consequences.
This practice alert highlights the Rule 48 amendments, however, as noted in the opening words in Rule 48.14, the Rule is subject to an order which contains a set down date which differs from what is contained in the Rule.
Pre-January 1, 2012 Actions:
Where an action is issued before January 1, 2012, and no order has been made which establishes a "set down" date, that action will be dismissed on January 1, 2017, without advanced notice to the parties or their lawyers. In other words, if an action is issued on September 24, 2011 and no order has been made requiring the plaintiff to set the action down by a certain date, that action will be dismissed on January 1, 2017.
Post-January 1, 2012 Actions:
Where an action is issued on or after January 1, 2012, and no order has been made which establishes a "set down" date, that action will be dismissed 5 years following the date the action was issued, without advanced notice to the parties or their lawyers. In other words, if an action is issued on December 24, 2013 and no order has been made requiring the plaintiff to set the action down by a certain date, that action will be dismissed on December 24, 2018.
If an action is dismissed under this new Rule, the registrar will send a dismissal order to all parties and a lawyer served with a Rule 48 dismissal order must promptly give a copy to his or her client.
To avoid a dismissal order, at least 30 days prior to the dismissal deadline, parties can agree upon and file a timetable and draft order. If the plaintiff cannot however secure the consent of the parties, the plaintiff can request a status hearing and show cause why the matter should not be dismissed for delay. At a status hearing, the court can dismiss the action, adjourn the hearing, make a Rule 77 case management order, or set deadlines for completion of the steps necessary and a deadline to set the action down for trial.
To determine the status of an action, a Case History will disclose whether the action has been dismissed and/or if a Status Notice served prior to January 1, 2015 has been "vacated".
Finally, the new wording which should appear in statements of claim issued after January 1, 2015, provides as follows:
"TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has not been set down for trial or terminated by any means within five years after the action was commenced unless otherwise ordered by the court."
Originally published in OBA Construction & Infrastructure Law
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