1.2: Purpose and intention of these rules
4.1: Responsibilities of parties to manage litigation
4.2: What the responsibility includes
4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Defendant in this Action applied to dismiss the Action for delay in prosecution, pursuant to Rule 4.31.

The Court noted that “significant prejudice” is the test for actionable delay under Rule 4.31. The Court added that inordinate delay is a temporal reference to how long the lawsuit has taken to get to the point at which the moving party makes his application under Rule 4.31. The Court highlighted that whether the passage of time has been too long is a circumstance-specific inquiry and is not formulaic. The Court added that if the Plaintiffs delayed the prosecution of the Action in a way that is inordinate, then the burden of proof shifts to the Plaintiffs to prove that such delay is excusable. If the Defendant proves inordinate delay and the Plaintiffs offer no acceptable excuse for the delay, significant prejudice to the Defendant is presumed.

The Court noted that the 11 years that had passed since the Action commenced was “undeniably a long time.” The Defendant had not applied under Rule 4.33(2), despite the longevity of the lawsuit, because there was no three-year period in which nothing had happened.

In assessing the delays to the litigation, the Court found there was inordinate delay, but it was excusable. The Court cited, for example, the constraints caused by COVID-19 and the fact that the Plaintiffs had pushed the matter along with relative consistency (albeit not with rigour).

The Court noted that the Defendant had to establish significant prejudice and it had not. Ultimately, the Court chose to draft a Litigation Plan with specific deadlines, which would become a Procedural Order, pursuant to Rule 4.31(1)(b). The Court added that, when that Rule is combined with Foundational Rules 1.2, 4.1 and 4.2, it has “extremely wide discretion to set deadlines” which would govern the Action onwards. The Court closed with noting that, if the Plaintiffs ignored the draft Litigation Plan, the Defendant could apply to strike the pleadings, seek to dismiss the Action or other steps as a remedy for contempt.

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