4.33: Dismissal for long delay

Case Summary

This was an Appeal of an Order dismissing an Action for long delay under Rule 4.33.

The Appellant, Ms. Mulholland, filed a Statement of Claim against the Respondent, Ms. Rensonnet, in September 2013. The following year, the Respondent filed a Statement of Defence and a Third Party Claim against the other Appellant, Mr. Uttl. In 2016, Cross-Applications for partial Summary Judgment and Summary Dismissal were dismissed. An Appeal from the dismissal of partial Summary Judgment was dismissed in January 2018.

In January 2022, The Respondent filed a Rule 4.33 Application. Both Appellants filed detailed Affidavits setting out the steps they believed had significantly advanced the Action. The Application was heard in morning Chambers on February 11, 2022, wherein the Chambers Judge granted the Respondent’s Application and awarded Costs.

On Appeal, the Appellants asserted that the Chambers Judge committed procedural errors by proceeding in morning Chambers rather than adjourning to a Special Chambers hearing and by not allowing them a full opportunity to be heard. Additionally, the Appellants alleged that the Chambers Judge failed to apply the correct legal test, overlooked evidence, and erred in drawing conclusions of mixed fact and law.

In dismissing the Appellants’ claims, the Court of Appeal first noted that a decision to adjourn to a Special Chambers hearing was discretionary and would be reviewed on a standard of reasonableness. Despite the voluminous materials involved in the underlying Action, the evidence on the Rule 4.33 Application was straightforward. Therefore, the Chambers Judge’s decision to proceed in morning Chambers was within his discretion and was not unreasonable. Further, the Chambers Judge did not deny the Appellants an opportunity to be heard since both Appellants filed written materials and made oral submissions. The Chambers Judge committed no error by directing Mr. Uttl to focus on relevant issues rather than reciting his prepared submissions or by taking the unusual step of allowing Mr. Uttl an oral sur-reply.

The Court of Appeal also found there was no reviewable errors in the Chambers Judge’s conclusion that the following three events did not significantly advance the underlying Action: (1) discontinuance of case management; (2) an ex parte Order allowing service by email; and (3) the filing of a Notice to Admit and a Response. This was based on a functional examination of the Notice to Admit and the Response in this case, which revealed that nothing had changed to advance the Action or to narrow the issues. In addition, the Court of Appeal noted that the Chambers Judge’s decision to award Costs to the Respondent was discretionary and based on evidence from the entirety of the circumstances.

In the result, the Court of Appeal dismissed the Appeal.

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