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(d)
When cases "go to sleep"
In many cases, after an initial flurry of activity, steps in the action cease and the case is
said to have "gone to sleep". This may, for example, be because the plaintiff has lost
his resolve to pursue the claim, or has run out of funds to finance it or because the
parties have come to a settlement without telling the court that this has happened.
Where there has not been a settlement but no progress is made by the plaintiff, the
defendant is often content to let sleeping dogs lie. The defendant may hope that the
case will be allowed to die a natural death or, if not, that a build up of a period of
inordinate and inexcusable delay, coupled with prejudice to the defendant, may lead to
the action, if revived later, being dismissed for want of prosecution.
What should the court's attitude be to cases going to sleep in the framework of
milestone dates and court-supervised timetables In the Working Party's view, a
balance should be struck between (i) not forcing parties who are not minded to
continue the litigation to fight it against their will or better judgment; and (ii)
maintaining the discipline of the timetable set by the court.
A difference should be drawn between cases which go to sleep prior to the parties
filing the questionnaire, so that no milestone dates have been set by the court, and
cases where milestone dates have been set. In the former category, the court should
not take the initiative to compel the setting of a timetable in order to avoid forcing
litigation upon the parties.
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