Labrenz J

3.62: Amending pleading
3.67: Close of pleadings
7.1: Application to resolve particular questions or issues
10.6: Void provisions

Case Summary

Justice Labrenz presided over a Trial of the Plaintiff’s claim against the Defendant lawyer. The Plaintiff sought to prove that he had been negligently represented by the Defendant with respect to a claim against the Plaintiff’s former employer (the “Underlying Action”). At the commencement of Trial, His Lordship invoked Rule 7.1 to sever determination of damages from determination of liability, noting the consent of the parties to that effect.

In the Underlying Action, the Statement of Claim drafted by the Defendant had failed to disclose a cause of action. Rather than file a Statement of Defence, the Defendant employer applied to strike the Statement of Claim, and was successful. Justice Labrenz considered the Defendant’s liability for negligent drafting, as well as the Defendant’s failure, upon realization of an important omission, to advise the Plaintiff that leave to amend the Statement of Claim pursuant to Rule 3.62(1)(a) was not necessary because pleadings had not closed pursuant to Rule 3.67.

The Court found that the Defendant owed duties to the Plaintiff in tort and contract. Moreover, while the retainer agreement purported to limit the Defendant’s liability in the event of any dispute respecting legal fees, that provision was void as an improper limitation of liability pursuant to Rule 10.6. Having found duties unaffected by any limitation of liability, the Court went on to determine that those duties had been breached by the Defendant.

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