The defendants brought a motion under Rule 39.03 of the Rules of Civil Procedure to compel the plaintiffs’ former lawyers to attend examinations as witnesses in aid of a motion to dismiss a 20‑year‑old action for delay.
The plaintiffs had filed affidavits attributing the delay in prosecuting the claim to the inaction and failures of their previous counsel.
The court held that the former lawyers were likely to possess relevant evidence concerning the causes of the delay and whether it was intentional or inexcusable.
By blaming their lawyers and placing the communications and conduct of counsel at issue, the plaintiffs were found to have waived solicitor‑client privilege to the extent necessary to permit examination.
The court ordered four former lawyers to attend examinations under Rule 39.03, quashed the summons against one lawyer, and directed that the examinations occur after cross‑examinations on the plaintiffs’ affidavits.