master robertson

4.33: Dismissal for long delay

Case Summary

The Applicant (Defendant) applied to dismiss the Action due to long delay pursuant to Rule 4.33. The issue in dispute between the parties was whether the Action was significantly advanced by the provision of replies to certain Undertakings which were given just short of three years after initial replies to Undertakings provided. Initial Undertaking responses were provided in October of 2015. Upon receipt of the initial Undertaking responses, the Applicant’s counsel advised the Respondent’s counsel that the Undertakings were not complete. In August of 2018, Respondent’s counsel provided further responses to the Undertakings.

The Applicant argued that the further Undertaking responses did not significantly advance the Action because they either did not provide any new information, or the information which was provided was of marginal relevance or utility to the resolution of the dispute. The Respondent argued that the significant advance in the Action which occurred by the provision of the further Undertakings was the provision of the information that the special damages being sought were limited to the items which had been previously provided. 

Master Robertson held that while the information provided in August 2018 was given “long after it should have been” and was “modest”, it nonetheless significantly advanced the claim for the purposes of Rule 4.33. However, Master Robertson reserved the jurisdiction to “impose a firm litigation schedule” pursuant to Rule 4.33(2) to ensure the matter proceeded to Trial expediently. Master Robertson also declined to award Costs to the Respondent despite his success in the Application. The Application was dismissed.

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