[9] When all is considered it seems to me that this is a case where either plaintiff’s counsel legitimately believed that liability was not an issue which would justify the granting of leave for discoveries by application of the more stringent test set out in Hill, or, counsel inadvertently passed the trial record when he ought to have known that liability was still an issue. I believe the latter scenario is the more likely one.
[10] On the facts of this case, I would apply the suggested approach set out in the BNL case. I prefer the approach suggested by Master Muir in the BNLdecision at paragraph 14, over the approach put forward in Hill.
[11] The simple truth is this would be a straightforward discovery, they could take place in less than two hours or by written interrogatory. The trial will not be delayed as a result of granting leave. The order will stipulate that the discovery and accompanying undertakings will have to be completed within a 120 day window following the release of this endorsement. This negates the principal reason for rule 48.04 which is to “ensure that matters are not set down until they are ready for trial. This practice avoids delays and the loss of valuable trial time” as per BNL. This trial scheduled for May 29, 2017 will not be lost by granting leave, nor will the defendant be prejudiced in any manner.