Eamon J. dealt with an Appeal of a Master’s Decision to dismiss the Plaintiffs’ Action on the basis of delay pursuant to Rules 4.31 and 4.33 (the “Underling Action”). The Master dismissed the Underlying Action pursuant to Rule 4.31 against all Defendants due to the Plaintiffs’ delay in moving the Action forward and the resulting prejudice suffered by the Defendants. The Master also would have also dismissed the Underlying Action pursuant to Rule 4.33.

The Appellants raised concerns that the Master had ignored their submissions generally and specifically with respect to the chronology of the Underlying Action contained predominantly in their Response to Notice to Admit Facts. Justice Eamon reviewed the applicable Rules of 6.37, 6.11, 13.18 and rejected this assertion. His Lordship found that a Notice to Admit under Rule 6.37 calls on an opposing party to provide admissions to dispense with proof of specific facts; however, the required explanation is not evidence that can be used against the party seeking the admission. To permit that use would circumvent the requirement for proper Affidavits or other admissible evidence on Applications under Rules 6.11 and 13.18 and defeat the objectives of efficient and fair proceedings under the Foundational Rules 1.1 and 1.2. Justice Eamon found, in essence, that this use of Rule 6.37 would allow a party on whom a Notice to Admit is served to make wide ranging assertions of fact without any means of challenge by cross-examination.

Justice Eamon reviewed the factual history between the parties and concluded that the Appellants had failed to comply with their obligations under each of Rules 4.1, 4.2 and 4.4. Namely, they failed to effectively manage the litigation by failing to disclose various records which they knew the Defendants wanted (Rules 1.2(2)(d) and 4.2(a)), and failed to cooperate in scheduling a records production Application on the special list knowing that the reasonable deadline for discovery (identified by the parties) had long passed (Rule 4.4(1)(b)). Accordingly, Justice Eamon dismissed the Appeal.