3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
7.3: Summary Judgment (Application and decision)
13.7: Pleadings: other requirements
13.8: Pleadings: other contents

Case Summary

This was an Appeal of portions of a Decision of Applications Judge Farrington allowing the Plaintiffs’ proposed amendments to a Statement of Claim, including allegations of fraudulent and/or negligent misrepresentations, and dismissing the Application for partial Summary Dismissal of claims.

The Court considered amendments to Pleadings pursuant to Rules 3.62 and 3.65 and undertook a review of the proposed amendments to consider whether the amendments would cause serious prejudice to the opposing Party, not compensable in Costs; the amendments requested were hopeless; the amendments sought to add a new Party or new cause of action after the expiry of a limitation period; and whether there was an element of bad faith associated with the failures to plead the element in the first instance. The Court noted that putting too fine a point on the merits is inappropriate at this stage, and that Rule 13.7 requires providing particulars of fraud and misrepresentation in Pleadings. With the amendments sought, the stricter test for fraud or negligence would additionally need to be proven, but the evidence and facts that underpin whether the representation has the additional characteristic would not significantly differ from what would already need to be in evidence.

The Court also stated that the Defendants’ Summary Dismissal Applications concerning potential limitations defences were brought under Rule 7.3, and that Rule 13.18 supplements Rule 7.3(2) which requires that an Affidavit in support of an Application that may dispose of all or part of a claim must be sworn on the basis of the personal knowledge of the person swearing the Affidavit. As there were gaps and uncertainties in the facts, the record, and the law, the Court held that summary disposition would not be a fair result and that the limitation issues were genuine triable issues.

Ultimately, the Court held that the claims were not appropriate for resolution on a summary basis as they were based on a common dispute about family dealings, the understanding of the nature of the advances, and general expectations that related to all the other claims. The Court noted that Summary Judgment is only appropriate where the issues at bar are sufficiently discrete from those in the main Action. In this instance, Summary Judgment was determined not to be timely or cost-effective, nor would it eliminate the need for evidence specific to the dismissed claims.

The Court dismissed the Appeal from Application Judge Farrington’s Decision and upheld his Order to grant the amendments and dismiss the Application for Summary Dismissal.  

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