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Pre-2012 matters not set down will be automatically dismissed January 1, 2017

As we begin the New Year, it’s a good time to review your litigation files and make sure they are proceeding as appropriate. The clock is ticking! Remember, under the new Rule 48.14 of the Rules of Civil Procedure, matters commenced before January 1, 2012 will be automatically dismissed – without notice to you – on January 1, 2017, if the action is not set down for trial.

Take immediate action to ensure your pre-2012 files will either resolve or be set down for trial by the end of this year. If you anticipate you cannot do so, obtain consent from all parties to file a timetable with the court by December 1, 2016 (Rule 48.14(4) requires this happen 30 or more days before the dismissal date). And if you cannot resolve, set down, or file a consent timetable on a pre-2012 file, then you will need to bring a motion for a status hearing before the dismissal deadline. However, before doing so, please contact LawPRO as you have a potential claim. Early notice will hopefully allow the opportunity to repair potential claims – and avoid the $10,000 increase in deductible that will apply if a dismissal is not set aside.

Be proactive and dictate the pace of litigation on your files. Be aware of the three most common reasons files are dismissed for delay – and don’t let them happen to you. Consider using LawPRO’s Rule 48 Transition Toolkit (Rule 48 Transition Toolkit.

Nevertheless, these highly preventable claims continue to occur, and are becoming more challenging than ever to defend. Starting with the 2014 policy year, where an administrative dismissal is not set aside through steps taken by or under the direction of LawPRO, in regard to a resulting claim, the deductible for that claim will be deemed to apply to claim expenses, indemnity payments and/or repair costs and be $10,000 more than the deductible chosen by the insured and/or listed on the declarations page of the policy. (There is an exception to this, for claims arising out of certain pro bono work.)

Often these types of claims can be repaired if early notice is provided, so we urge lawyers to continue to report actual and potential claims as soon as they are discovered to permit LawPRO counsel every opportunity to have the proceeding reinstated and to avoid the application of the increased deductible. For this reason the increased deductible will apply only to claims resulting from administrative dismissals that are not set aside.