Robert K. McCartney

This decision addresses the costs of a motion where the plaintiffs were entirely successful in determining the order of examination for discovery.

The court awarded substantial indemnity costs to the plaintiffs, condemning the defendant Aviva's tactical delay and deficient affidavit of documents.

The judge emphasized the importance of proper document disclosure in civil litigation and allowed for counsel's travel time and reasonable disbursements, noting that a litigant's choice of counsel should not be limited by geographical proximity.

The plaintiffs brought a motion for directions to determine the order of examinations for discovery.

The defendant insurer had served an affidavit of documents that was two years out of date and omitted the relevant insurance policy, claiming priority to examine the plaintiffs first.

The court found the insurer's affidavit of documents was deficient and a nullity, meaning it had not preserved its right to examine first.

The court ordered the insurer to serve a further and better affidavit of documents, struck the insurer's notice of examination and certificate of non-attendance, and ordered that the plaintiffs were entitled to examine the defendants first.