1.2: Purpose and intention of these rules
5.2: When something is relevant and material
5.6: Form and contents of affidavit of records
10.52: Declaration of civil contempt

Case Summary

The Plaintiffs obtained an Order which explicitly set out that the Respondents were each required to prepare and swear a further and better Affidavit of Records. The Defendants produced heavily redacted documents, and produced a hard drive without properly listing the documents in the schedule to the Affidavit of Records. The Plaintiffs applied unsuccessfully before a Case Management Judge to hold the Defendants in Contempt, pursuant to Rule 10.52. The Case Management Judge dismissed the Contempt Application on the basis that it was premature and the Order did not give the Defendants an ultimatum which would reasonably lead them to believe that failing to comply would result in Judgment against them. Subsequent to these events, one of the Defendants swore an Affidavit in support of a Summary Dismissal Application which attached as exhibits a number of invoices and other supporting documentation which had not been previously produced. The Plaintiffs applied a second time for Contempt, but this was also dismissed by the Case Management Judge. The Plaintiffs appealed the second Order.

The Court of Appeal held that the Case Management Judge had erred in dismissing the Application for Contempt and granted the Appeal. The second Order was granted in the context of the prior Order which explicitly set out that the Respondents “shall each prepare and swear a further and better Affidavit of Records”. Only one of the Defendants swore an Affidavit of Records on behalf of all them. Further, the Defendants’ failure to previously produce relevant documents, as determined by Rule 5.2, that they relied on for their own Summary Dismissal Application, was in clear breach of the Order and their obligations to comply with Rule 5.6. The Respondents were therefore found in contempt. The Court of Appeal referred to Foundational Rule 1.2 and stated that the Rules must be interpreted and applied in a manner that promotes access to justice and encourages early disclosure. The matter was returned to the Case Management Judge to impose the appropriate penalty for the contempt.

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