The Defendant applied to dismiss the Plaintiff’s Claim on the basis of long delay, pursuant to Rule 4.33. In their Agreed Statement of Facts, the Parties agreed that more than three years had passed without a significant advance in the Action, Master Smart stated that the Action must be dismissed unless an exceptional Rule applied.

The Plaintiff argued that two exceptions did apply: there was an express agreement to delay, pursuant to Rule 4.33(1)(a), and there was a significant advance in a parallel “inextricably linked action”. The Plaintiff, following the Defendant’s filing its Statement of Defence and Counterclaim, sought agreement that the Defendant would not take any adverse steps in respect of the Counterclaim without prior written reasonable notice. The Court held that extending this “usual courtesy” did not mean that the parties had expressly agreed to delay, as envisioned by Rule 4.33. Additionally, in this case the “usual courtesy” was extended in respect of a Counterclaim, without any suggestion that the Plaintiff was not required to move forward its Claim.

Master Smart explained that a significant advance in another action may constitute a significant advance in the primary action if the secondary action is “inextricably linked” to the primary action. The Court should consider four factors to determine whether such an inextricable link exists: (1) if the related action would be “legally or factually determinative” of the issues in the primary action; (2) if the issues in the related action would be “relevant and binding” in the primary action; (3) if the related action materially advanced the primary action, and (4) if the decision in the related action could be a “barrier in law” to the Court’s adjudication of the primary action. In this case, Master Smart held that the two Actions commenced by the Plaintiff were distinct, even though the assertions raised by the Defendants in the Defences and Counterclaim were identical. Though there was a “clear and identifiable link” between the two Counterclaims, their determinations would not “advance the claims … for amounts alleged to be due to [the Plaintiff] … in either Action”. Master Smart held that it was not necessary to consider the sufficiency of the material filed in opposition to the Application for Summary Judgment in the parallel Action. The Plaintiff’s Claim was dismissed pursuant to Rule 4.33.

Master Smart noted that, while the Defendant sought Costs on an indemnity basis, there was no evidence to support such a Decision. Costs were awarded pursuant to Column 5 of Schedule C.