The Applicant sought to dismiss the Respondent’s Counterclaim filed pursuant to Rule 4.33 or, alternatively, pursuant to Rule 4.31. The Court granted the Application to dismiss the Respondent’s Counterclaim pursuant to Rule 4.31.

Rule 4.31 provides that when there is delay in an Action, the Court may dismiss all or any part of a claim, “if the Court determines that the delay has resulted in significant prejudice to a party”. Rule 4.31(2) provides that: “[w]here ... the Court finds that the delay in an action is inordinate and inexcusable, the delay is presumed to have resulted in significant prejudice...”. This is a rebuttable presumption in law.

The Court noted there is a “presumptive ceiling of 10 years beyond which delay will be presumed to be inordinate and unreasonable” though, in this case, the Court relied on the particular facts to find inordinate delay.

The Court found that the progress of the claim was grossly beyond the time that a litigant would take noting that:

• the Counterclaim was nearly 14 years old;
• 11 years had elapsed since the end of a Standstill Agreement;
• Questioning had still not been completed;
• the Respondent had not provided a Damages Brief which was a pre-requisite to finish the Questioning of the Respondent; and
• the matter would not be set down for Trial for at minimum two years.

The Court determined that a Counterclaim, by definition, was a standard and not complex case under the Rules because neither of the parties had asserted that it was complex under Rule 4.3 and the Court had not declared it as such.

The Court, in finding for the Applicant, found that there was no justification for the inordinate delay and there was significant prejudice to the Applicant as the delay had weakened the memories of several witnesses.