4.31: Application to deal with delay
4.33: Dismissal for long delay
5.2: When something is relevant and material
15.4: Dismissal for long delay: bridging provision
15.6: Resolution of difficulty or doubt

Case Summary

The Plaintiffs’ house burned down in 2005, and the maximum amount under their insurance policy was paid in 2007. The Plaintiffs sued their insurance company in 2006, seeking damages on the basis that they were underinsured. In 2011, one of the Defendants brought an Application to compel answers to the Plaintiffs’ Undertakings given at Questioning. Pursuant to a Consent Order, the Plaintiffs were required to provide answers by November 28, 2011. Nothing happened in the Action for nearly three years after that date. A day before the three-year period was up, the Plaintiffs applied to require the Defendants to provide answers to Undertakings, provided a Request to Schedule a Trial Date, and swore a Supplementary Affidavit of Records which did not add to what was already provided in November 2011. The Application was adjourned sine die, and the Defendants applied to strike the Action for long delay.

Since Rule 4.33 came into force on November 1, 2013, the Plaintiffs argued that it should not be given retroactive effect and that the drop-dead period should be five years as under the former Rules instead of three years. Master Schlosser, referring to prior authority which explained Rule 4.33, stated that the Rule plainly has retroactive effect. The authorities are clear that there is interplay between transitional Rules 15.4, 15.6 and Rule 4.33 so that the Rule “applies to actions that were in existence when it came into force”.

Master Schlosser considered whether the Action had been significantly advanced within the three year drop-dead period. The Court stated that Applications, Requests for Trial Dates and a Supplemental Affidavit of Records which lists documents already provided are not significant advances in the Action. The only remaining issue was whether the Undertaking Responses provided were sufficient to significantly advance the Action. Master Schlosser noted that the relevant Rule for this question was Rule 5.2(1), which is very similar to former Rule 186. Master Schlosser reviewed whether the Undertaking Responses were relevant and material, and held that none of the Undertaking Responses would have significantly advanced the Action. The Action was not advanced in the time permitted by the Rules. Accordingly, the Action was dismissed for delay.

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