The Defendants appealed the Decision of Applications Judge Mason wherein the Court did not dismiss the Plaintiff’s Action against them under Rule 4.31. Applications Judge Mason found that there was such delay but declined to dismiss the Action because the Plaintiff had rebutted the presumption of significant prejudice to the Defendants.

On review, Justice Malik concluded that the Plaintiff had not rebutted the presumption of significant prejudice that flows from its own delay in respect of the Defendants’ recollection of past events. The Plaintiff had not established that the Defendants’ memories were intact such that they could reasonably defend themselves at Trial, nor had the Plaintiff established that its allegations against the Defendants are provable from the available documentary record.

Justice Malik addressed the Applications Judge Mason’s consideration that the “defendants have had fraud allegations hanging over their heads while these actions remain undetermined”, and Justice Malik concluded that due to the nature of the allegations concerning fraud, the Plaintiff had failed to satisfy the Court that the Defendants will not suffer additional prejudice before this matter can be resolved at Trial.

Justice Malik allowed the Appeal and dismissed the Plaintiff’s against the Defendants.