master prowse

4.33: Dismissal for long delay

Case Summary

The Defendants applied to strike six Actions commenced by the Plaintiffs, Paragon Capital Corporation Ltd (“Paragon”). In five of the six Actions, Paragon had served an Affidavit of Records within the three year period provided for in Rule 4.33, but in the sixth Action, Paragon did not provide an Affidavit of Records until three years and three months after service of the Statement of Defence.

The Defendants argued that, using the functional approach to dismissal Applications, the mere provision of an Affidavit of Records did not materially advance an Action, particularly where the Affidavit of Records only contained copies of the records that had previously been provided. Master Prowse noted in this case that the provision of an Affidavit of Records did constitute a significant advance in the Actions despite the Defendants already having copies of the records since the provision of an Affidavit of Records contains several admissions such as the assertion that there are no other material records, as well as admissions about the authenticity of documents in the Affidavit of Records. Master Prowse observed that the same considerations do not necessarily apply to a Supplemental Affidavit of Records, the provision of which would only constitute a significant advance “if the newly disclosed documents were functionally significant”.

Regarding the sixth Action, Master Prowse accepted the Plaintiff’s argument that a Summary Dismissal Application in that Action had significantly advanced the Action because the Affidavits and the subsequent Cross-Examinations in support of that Application had narrowed the issues in dispute, even though the Application was ultimately abandoned. The Applications to Dismiss all six Actions for long delay were dismissed.

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