The Plaintiff appealed an Order dismissing their Action for long delay under Rule 4.33. The Chambers Judge who had granted the dismissal of the Action provided a summary of the litigation history, which included, amongst other things: (i) the Defendants complying with an Order compelling answers to questions from Examination for Discovery on October 4, 2010; (ii) settlement discussions between October 2012 and February 2013; (iii) the Defendants disclosing additional detailed invoices on October 22, 2012 as part of the settlement discussions; and (iv) the Plaintiff serving a Supplemental Affidavit of Records on October 30, 2013 with a missing Schedule 1. Prior to the initial Application for dismissal for long delay, the Plaintiff served their missing Schedule 1 with a Supplemental Affidavit of Records.

The Master dismissed the Application and a Justice overturned the prior Order and granted a dismissal of the Action on Appeal.

The parties agreed that the Defendants’ compliance with the Order on October 4, 2010, was a significant advance in the Action. The new Rules came into force on November 1, 2010, effectively starting a three year drop dead period. Therefore, the relevant period of consideration was between November 1, 2010, and the date the Application to dismiss was filed on February 24, 2014. The Court of Appeal noted that the Chambers Judge had applied a functional approach and stated that settlement initiatives could significantly advance an Action, but the discussions in this Action accomplished little. The Chambers Judge also held that the failure to include Schedule 1 in the Supplemental Affidavit of Records was inadvertent, but that this step did not advance the Action.

The Court of Appeal referred to Rules 4.31 and 4.33 as the two Rules that deal with delay, and noted that the functional approach was adopted by the 2013 amendments to the Rules. It was held that the phrase “materially advances” in the prior Rule had the same meaning as a “significant advance” in new Rule 4.33.

The Court observed that production of new information or documents can significantly advance an Action, but the nature of those documents and their importance to the litigation must be examined. The Court considered the disclosure of detailed invoices on October 22, 2012. One of the issues in the Action was how much the Plaintiff was entitled to be paid. As such, the invoices were relevant and material, and the Defendants were required to produce them under Rule 5.10. They should have done so in a Supplemental Affidavit of Records, as opposed to attaching them to a settlement letter on a “without prejudice” basis. These documents were important to both parties and their production constituted a significant advance in the Action. Therefore, the Appeal was granted and the Action was restored.