4.33: Dismissal for long delay

Case Summary

This was an Appeal of a Chambers Justice’s decision to dismiss the Action for long delay pursuant to Rule 4.33. The litigation was commenced in July 2012; it proceeded with several litigation steps having been taken until May 2014. On April 6, 2015 the Respondent made a request for further documents. On May 17, 2016 the Appellant provided a letter enclosing responses to some of the requests and rejecting others, and in that same letter the Appellant indicated he would abandon some of his claims. On May 26, 2017 the parties consented to an Order for a Case Management Conference. 14 days before the Case Management Conference was to be heard, the Respondents filed an Application to dismiss the claim for long delay pursuant Rule 4.33. The question before the Court was whether the events of May 17, 2016 or May 26, 2017 had significantly advanced the Action.

The Court examined various legal principles in interpreting Rule 4.33, namely that: Plaintiffs bear the responsibility of prosecuting their claims in a timely manner; Defendants are obliged not to obstruct, delay or stall an Action; a context specific functional approach is appropriate to determine if a step constituted a significant advance in an Action; only one significant advance in an Action is needed in a three year period; and that whether or not an agreement constituted an advance in an Action is context specific.

The Court noted that Rule 4.33 was designed to prune Actions that had truly died and that Rule 4.33 was not meant to regulate the efficient prosecution of Actions. The Chambers Judge found that the Appellant’s abandonment of certain claims alone did not advance the Action as those claims were doomed to fail. The Respondent did request document production because it thought that it was important, and the Appellant did provide some documents in response and objected to other requests. Conduct money and further document production became a key roadblock, and the Appellant had tried to address this roadblock by obtaining a Case Management Order. The Court of Appeal found that the abandonment of claims, document production and objections, and Case Management Order, separately and cumulatively, constituted a significant advance in the Action.

The Appeal was allowed and the Action was restored.

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