Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs alleged negligence, breach of contract, and breach of fiduciary duty against their former legal counsel related to services from 1999 to 2006.

• Both parties contributed to procedural delays, with no significant action taken after discovery concluded in July 2019.

• Defendants sought dismissal for want of prosecution under Civil Procedure Rule 82.18, citing inordinate and inexcusable delay.

• The court assessed whether the delay prejudiced the defendants or warranted a presumption of serious prejudice.

• Outstanding undertakings and disclosure issues remained unresolved at the time of the motion.

• No costs were awarded, as responsibility for the delay was shared by both parties.

Background and allegations

Peter Christakos and Oceana Pictures Incorporated, as plaintiffs, filed a Notice of Action and Statement of Claim on February 8, 2013, against Raymond Adlington and McInnes Cooper. The claims involved allegations of negligence, breach of contract, and breach of fiduciary duty arising from legal services provided by the defendants between 1999 and 2006. The plaintiffs were initially self-represented but retained counsel in August 2014. The litigation saw extended procedural exchanges, including demands for particulars, statements of defence, and discovery examinations, which concluded on July 24, 2019.

Procedural history and motion for dismissal

Following the completion of discoveries in July 2019, neither party took further steps to advance the proceeding. In 2025, the defendants brought a motion to dismiss the plaintiffs’ claim for want of prosecution, pursuant to Civil Procedure Rule 82.18. The motion was supported by affidavits from counsel and the plaintiff, outlining the history of the case and the periods of inactivity. The court noted that the delay in moving the case forward began after the last discovery in July 2019 and continued for approximately six years, with some of this period coinciding with the COVID-19 pandemic and a misunderstanding regarding the plaintiffs’ legal representation.

Legal analysis and court’s reasoning

The court applied the established legal test for dismissal for want of prosecution, considering whether the delay was inordinate, whether the plaintiffs were to blame, whether the delay was excusable, and whether the defendants were likely to be seriously prejudiced. The judge found the delay was inordinate and inexcusable but determined that both parties shared responsibility for the delay. The court found no evidence that the defendants suffered actual serious prejudice, such as loss of witnesses or documents, and declined to presume serious prejudice in the absence of such evidence.

Outcome and orders

The court dismissed the defendants’ motion to dismiss the action for want of prosecution. The matter was ordered to proceed within strict timelines for outstanding disclosure and preparation for a Date Assignment Conference. The court specifically declined to award costs to either party, stating, “While the Defendants were unsuccessful, the Plaintiffs must bear their own measure of responsibility for the events (or, non-events) giving rise to this motion.” As a result, the plaintiffs were the successful party on the motion, but no monetary award, damages, or costs were ordered in favor of any party. The total amount ordered in favor of the successful party is zero, as no financial compensation was granted.