In September of 2016 the Respondents applied to have the underlying Actions dismissed pursuant to Rules 4.33 and 4.31. The Master had refused to dismiss those Actions, and the Chambers Judge allowed the Appeal of the Master’s Decision and dismissed the underlying Actions pursuant to Rule 4.31. The Appellants then appealed that Decision of the Chambers Judge.

The Appellants submitted that when the Chambers Judge determined that the Appellants had conceded that the delay was inexcusable, the Judge had erred. They further submitted that this led to the Judge mistakenly presuming that significant prejudice was established pursuant to Rule 4.31(2). The Court determined that whether the Appellants had conceded the point or not was not relevant as the Chambers Judge had undertaken her own analysis. 

In assessing whether the Chambers Judge erred in determining whether the delay was inexcusable, the Court noted that the Rules placed an obligation on all parties to “to advance an action in a timely and cost-effective way” and referred to Rules 1.2, 4.1 and 4.2. The Court noted that Rule 5.34 provided that a Trial date could not be scheduled unless expert reports had been exchanged. The Rules did not permit a party to refuse to conduct Questioning until expert reports were provided. In the underlying Actions, the Respondents and the Appellants agreed to delay Questioning until expert reports were provided. The Court determined that the Chambers Judge’s failure to consider the role of the Respondents in the arrangement to have expert reports exchanged before Questioning was an error in principle and the Appeal was allowed.