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Civil Litigation - Strikings Pleadings - Timetable Non-Compliance [R3.04]. Typhoon Capital BV v. Jacob
In Typhoon Capital BV v. Jacob (Div Ct, 2022) the Divisional Court struck a defence in the context of failure to comply with a case management time table [R3.04(4)(b)] and other procedural and order failures. The case sounds largely in contempt, though 'contempt' is not an issue as such:[32] Repeated breaches of court orders may also support an order to strike out a pleading. In Starland the court referred to the case law regarding the impact of repeated breaches. At para. 32 of Starland, the court quotes from Vacca, in which the court stated as follows at paras. 27-28:There comes a time when this court is obliged to meet its responsibility for the effective administration of justice through case management by dismissing an action. Such is the case when the plaintiff repeatedly fails to comply with orders of the court whether or not there has been prejudice to the defendants.
In the circumstances of four breached orders, including the “last chance” order, the Master realistically had only two options – one was to give the plaintiffs yet another chance – the other was to dismiss the action. [33] In Vacca, the Divisional Court upheld the decision to strike out the claim.
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[36] The Associate Justice expressly addressed the drastic nature of the requested remedy and considered whether to grant some lesser remedy. She made no error in doing so. She considered the possibility of a new timetable in view of the prior promises to comply with timetables, including consent timetables, that were breached. She was satisfied that all efforts short of dismissal had been tried and had not succeeded. She noted that the court had tried costs awards, peremptory orders, warnings and ultimately a last chance order. Her finding that there was no change in circumstances that persuaded her that the appellants were any more serious about fulfilling their obligations is entitled to deference.
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[40] In exercising her discretion, the Associate Justice recognized that she had to balance the appellants’ right to have their case heard against the impact of their conduct on the court’s ability to do justice. She considered whether or not the breaches were mere technical breaches, concluding that they were not and had resulted in a situation where it would not be appropriate to have the appellants continue their defence. She concluded that, in the circumstances of this case, the impact of the appellants’ conduct called for the Order. She made no error in doing so.
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