4.31: Application to deal with delay

Case Summary

The Plaintiffs commenced an Action in 2006 against the Defendants for the non-payment of a promissory note. The Defendants contended that the promissory note was forged. The Defendants sought and obtained dismissal for delay pursuant to Rule 4.31(1). The Chambers Judge held, and the Plaintiffs conceded, that there had been “inordinate and inexcusable delay” in their Action. However, the Plaintiffs appealed the Chambers Judge’s finding that the delay had caused both presumptive and actual prejudice which justified the dismissal of their Action.

The Court of Appeal held that Rule 4.31(2) recognizes that prejudice is presumed to result from inordinate and inexcusable delay. The Court noted that “[m]erely because the party prejudiced cannot itemize every impact of prejudice is not an answer to the presumption”.

The Plaintiffs argued that the Defendants could not rely on an argument of delay when they had acquiesced to, or waived the delay. The Court of Appeal stated that this argument was not made in the original Application and therefore could not be raised as a new issue on Appeal.

The Court observed that there was no evidence before the Court which would demonstrate that the Defendant had acquiesced to the delay or waived their right to assert it. The Appeal was dismissed.

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