The defendants brought a motion to admit a supplementary affidavit from Bibi Goriah, sworn after cross-examinations, to be considered at a summary judgment motion.
The plaintiffs opposed, arguing prejudice and a violation of the rule in Browne v. Dunn.
The court applied the four-part test under Rule 39.02(2) of the Rules of Civil Procedure, finding the evidence relevant and that any potential prejudice could be mitigated by allowing the plaintiffs further cross-examinations and the opportunity to file reply evidence.
The court also considered counsel's oversight as a factor.
The motion to admit the affidavit was granted, but costs were not awarded to the successful defendants due to the legitimate concerns raised by the plaintiffs.