3.68: Court options to deal with significant deficiencies

Case Summary

The Appellants appealed a Chambers Judge’s earlier Decision declining to strike an Amended Statement of Claim. The Appellants were individual Defendants and officers of a company. The Appellants previously filed an Application to strike under Rule 3.68 on the basis that it disclosed no reasonable claim as against them in their personal capacities. The Respondents filed a cross-Application to file the Amended Statement of Claim. Both Applications were heard together, and initially, the cross-Application was granted.

The Application’s Judge had dismissed the Application to strike noting that the law on concurrent liability of employees, officers, and directors for torts committed in the course of their employment is unsettled. The Appellants appealed to the Court of King’s Bench.

The Chambers Judge then dismissed the Appellants' Appeal, noting that it was not obvious whether the proposed amendments to the Statement of Claim disclosed any triable issue or whether the Appellants could be held personally liable for their actions.

On Appeal, the Court of Appeal then considered the factors that determine whether an individual can be held personally liable as a concurrent tortfeasor to a corporation, including the nature of the tort and whether it was intentional. The Court agreed with the Chambers Judge that it was not clear whether the Appellants could be held personally liable, and that the claims outlined in the Amended Statement of Claim should not be struck against the individual Defendants. The Appeal was ultimately dismissed.

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