Fennelly v. Lloyd's Underwriters et al., (2016) 378 Nfld. & P.E.I.R. 248 (NLTD(G))

• Judge: McGrath, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: September 18, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2016), 378 Nfld. & P.E.I.R. 248 (NLTD(G))

Fennelly v. Lloyd's (2016), 378 Nfld. & P.E.I.R. 248 (NLTD(G));

    1174 A.P.R. 248

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. JA.006

Thomas Fennelly (plaintiff) v. Lloyd's Underwriters (first defendant) and Anthony & Associates Inc. (second defendant )

(200801T4330; 2016 NLTD(G) 1)

Indexed As: Fennelly v. Lloyd's Underwriters et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

McGrath, J.

January 5, 2016.

Summary:

Fennelly's fishing vessel was the subject of a marine insurance policy. The vessel was damaged in January 2006. The insurer denied Fennelly's demand for payment. Fennelly commenced an action against the insurer and the insurance broker in October 2008. In May 2015, the insurer applied to have the claim dismissed for want of prosecution. Fennelly applied for a case management order.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed both applications.

Practice - Topic 37

Actions - Conduct of - General - Case management - Fennelly's fishing vessel was the subject of a marine insurance policy - The vessel was damaged - The insurer denied Fennelly's demand for payment - Fennelly commenced an action against the insurer and the insurance broker, alleging breach of contract and negligent misrepresentation - Fennelly applied for a case management order pursuant to rule 18A of the Rules of the Supreme Court - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application - The claim involved two causes of action and three unrelated parties - The proceeding therefore fell within the definition of a "complex trial" under rule 18.02(1)(d) - However, it was at the lower end of what could be considered a complex trial, and rule 18A did not contemplate that all cases in which there were three or more parties had to be case managed - The trial was likely to take less than two weeks - The nature and number of issues and evidence were relatively narrow and were commonly before the court - The mere fact that counsel were unable to agree on issues such as the costs of obtaining documents was not a reason to make a case management order - Counsel were expected to apply the Rules and take steps to ensure that relevant documents were filed and undertakings were completed - It was not the role of a case management judge to police the parties - The purpose and intent of rule 18A was not to create a situation where the parties could take every matter of disagreement back to the case management judge for resolution - It was expected that the parties would attempt to resolve matters between themselves but seek recourse by way of pre-trial application if necessary - See paragraphs 50 to 71.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Fennelly's fishing vessel was the subject of a marine insurance policy - The vessel was damaged in January 2006 - The insurer denied Fennelly's demand for payment - Fennelly commenced an action against the insurer and the insurance broker in October 2008 - In May 2015, the insurer applied to have the claim dismissed for want of prosecution - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application - The 9.5 year delay since the cause of action arose was inordinate - While the pleadings had closed and certain discovery examinations had taken place, the matter was not yet ready to be set down for trial - It was likely that further oral discoveries and documentary disclosure would take place - Very little was done to advance the matter since oral discoveries in March 2010 - Undertakings from those discoveries should have been satisfied within months, and further discoveries should have taken place relatively quickly - Any disagreements regarding the costs of obtaining documents could have been dealt with by way of court application - Fennelly failed to offer a valid excuse for why these steps were not taken - However, the insurer was not prejudiced by the delay - Any potential prejudice was caused not by Fennelly's delay in prosecuting the claim, but by the destruction of the vessel during its decommissioning in September 2013 - The insurer was fully aware that the vessel was in a deteriorated state and would be decommissioned - It had ample opportunity to examine the vessel between 2008 and 2013 - Further, the length of the delay was not, in and of itself, sufficient to constitute evidence of prejudice - See paragraphs 19 to 44.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See Practice - Topic 5360 ].

Counsel:

M. John Mate, for the plaintiff;

Ruth Trask, for the first defendant;

Kevin F. Stamp, Q.C., for the second defendant.

These applications were heard at St. John's, N.L., on September 18, 2015, before McGrath, J., of the Newfoundland and Labardor Supreme Court, Trial Division (General), who delivered the following reasons for judgment on January 5, 2016.