4.31: Application to deal with delay
13.18: Types of affidavit

Case Summary

The Application for delay under Rule 4.31 was brought by the Applicant/Defendant. The Plaintiff initiated the underlying Action in 2009. As a preliminary matter, the Court addressed an evidentiary concern raised by the Respondent regarding the Defendant’s Affidavits under Rule 13.18. The Respondent expressed reservations about the hearsay content of the Defendant’s Affidavits. The Court acknowledged that Rule 13.18 aims to prevent reliance on hearsay Affidavits when the very existence of a legal Action is at stake, but some flexibility is necessary in interpreting this Rule. It was noted that an Application for delay is a procedural matter, and the Court's focus is on the pace at which the claim has progressed rather than the merits of the claim. The Court observed that the risks associated with hearsay evidence are mitigated when the Affidavit is prepared by reviewing relevant correspondence and documents, and when the Affiant has attached them as exhibits for the Court's review, which was done in this case.

Additionally, the Court examined the relevant case law under Rule 4.31. It considered the claim against each of the Defendants and took note of the 13-year gap between the filing of the Statement of Claim and the current Application. The Court noted that the Action was not yet ready for Trial, and it was unlikely to reach that stage for a few more years due to outstanding steps, particularly the exchange of expert reports. The Court emphasized that the overall delay and the gaps in the progress of the case constituted significant delay against all the Defendants.

Applications Judge Smart emphasized that if Plaintiffs do not proceed with due diligence and expedition, they may lose the right to pursue their case. Court determined that the Plaintiff's progress in prosecuting this Action had been slow, which constitutes an unreasonable and inexcusable delay. The Applicant failed to counter the presumption of prejudice, specifically by not providing an expert report that would assist the Defendants in understanding the nature and strength of the Applicant's claim, determining the necessary evidence, retaining experts, and identifying essential witnesses. Applications Judge Smart found no compelling reasons for the Court to refrain from dismissing the Action, and consequently, dismissed the Plaintiff's Action against the Defendants.

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