The Defendant applied to dismiss the Action for long delay under Rule 4.33, asserting more than three years had elapsed without a significant advance in the Action. The Plaintiff contended that answers to Undertakings provided by the Plaintiff significantly advanced the Action within the three year period at issue. The answers to Undertakings consisted of confirmation that certain documents were unavailable and the provision of “will-say statements” by certain prospective witnesses.

Master Schlosser noted that the provision of will say statements “is to be encouraged” taking into account both Rule 1.2 and the fact that resolution is most likely when the parties know the case to meet.

Master Schlosser found however, that applying the functional approach to the answers to Undertakings revealed that the will-say statements did not address the matters raised in the lawsuit as they were directed at the character of one of the Defendants. Master Schlosser pointed out that if the statements were admissible at all, they would only be admissible as similar-fact evidence, and of marginal probative value.

Having found that more than three years had elapsed without a significant advance in the Action, Master Schlosser granted the Application, and dismissed the Action.