The Defendants applied for an Order to dismiss the Action for delay under Rules 4.33 or 4.31. The Action was started on March 21, 2016.

The Court considered the procedural history of the Action and did not find a period of three years (plus 75 days) had passed without a significant advance. The Court also found that it was not necessary in the circumstances to exercise its discretion to dismiss the Action under Rule 4.31.

The Court evaluated the parties’ submissions on what qualified as a significant advancement in the Action. The Plaintiffs contended the following steps were a significant advance: (i) Undertaking Responses provided on March 1, 2019; (ii) additional Responses to Undertakings provided on March 5, 2019; (iii) a Formal Settlement Offer dated October 5, 2021; (iv) an Appointment for Questioning on March 15, 2022; and (v) the service of their Questioning Application set for May 17, 2022.

The Defendants submitted that there was a period of three years plus seventy-five days afforded by Ministerial Order 27/2020 where there was no significant advance in the litigation. Since the last uncontroversial significant advance on January 15, 2019, the Defendants claimed that the Plaintiffs did not take steps to significantly advance the litigation by March 31, 2022.

In response to Rule 4.31, the Plaintiffs asserted that the Defendants' claims of significant prejudice lacked merit. Aside from a vague assertion regarding the fading of memories, the Defendants did not specify how the delay had created an unfair disadvantage or adversely impacted their defense against the Plaintiffs' allegations.

The Court reviewed the pertinent case law under Rules 4.33 and 4.31. Justice Loparco examined the various actions presented by the Plaintiff as significant advancements, including the Undertaking Responses, Formal Settlement Offer, Appointment for Questioning, and the Questioning Application, to assess whether these steps brought the parties closer to a resolution.

The Court held that the March 1, 2019 Undertaking Responses and the letter dated March 5, 2021 greatly propelled the case forward. In its Rule 4.31 analysis, the Court acknowledged the presence of excessive and unjustifiable delays; however, the Plaintiffs effectively countered the assumption of substantial prejudice. The Defendants' concerns for the deterioration of memories lacked evidence, and a significant portion of the evidence remained intact in written form. The request to dismiss the Action was rejected, and specific procedural timelines were established to facilitate the progression of the case.