The appellants appealed an order dismissing their main action and striking their defence to a counterclaim for delay and failure to comply with undertakings.
The Court of Appeal found no error in the motion judge's decision based on the record before him.
However, the appellants brought a motion to file fresh evidence consisting of the previously unproduced financial documents.
Although the fresh evidence did not meet the due diligence requirement, the Court admitted it because it was highly relevant to the ongoing defamation counterclaim.
The appeal was allowed, the pleadings were restored, and the action was returned to the trial list, with costs awarded to the respondent due to the appellants' delay.
