The court's finding was based to a large extent on the fact that at the date of hearing of the motion, the proceedings were ready for trial, and the parties had gone through and completed a discovery process.
It held that the burden on the party seeking to have proceedings struck out on the ground of delay is more onerous when the proceedings are ready for hearing.
The court noted that one period of delay (in 2018) was attributable to a request by the defendants that the matter not be set down for hearing as they were awaiting an advice on proofs from counsel.
Pilkington J found that that request amounted to a positive acquiescence or reassurance by the defendants to the plaintiffs that they intended to defend the proceedings, and held that the court could take that acquiescence into account in assessing whether the balance of justice lay with striking out the claim.
Where a plaintiff has indulged in significant delay in prosecuting its claim, such that an application to strike out for want of prosecution may be in the defendant's contemplation, the defendant should carefully consider whether to make any written representation indicating a positive intent to defend the substantive claim.
A defendant in such circumstances should consider its position before engaging in the discovery process.