Offshore Litigation

Blog

Offshore Litigation

Contributors

Jonathan Addo
Jonathan Addo
  • Jonathan Addo

  • Partner
  • British Virgin Islands
Jeremy Child
Jeremy Child
  • Jeremy Child

  • Partner
  • London
Stuart Cullen
Stuart Cullen
  • Stuart Cullen

  • Partner
  • British Virgin Islands
Julie Engwirda
Julie Engwirda
  • Julie Engwirda

  • Partner
  • Hong Kong
Peter Ferrer
Peter Ferrer
  • Peter Ferrer

  • Partner
  • British Virgin Islands
Claire Goldstein
Claire Goldstein
  • Claire Goldstein

  • Partner
  • British Virgin Islands
Hazel-Ann Hannaway
Hazel-Ann Hannaway
  • Hazel-Ann Hannaway

  • Partner
  • British Virgin Islands
Nick Hoffman
Nick Hoffman
  • Nick Hoffman

  • Partner
  • Cayman Islands
Andrew Johnstone
Andrew Johnstone
  • Andrew Johnstone

  • Partner
  • Hong Kong
Paula Kay
Paula Kay
  • Paula Kay

  • Partner
  • Hong Kong
Phillip Kite
Phillip Kite
  • Phillip Kite

  • Partner
  • London
Vicky Lord
Vicky Lord
  • Vicky Lord

  • Partner
  • Shanghai
Paul Madden
Paul Madden
  • Paul Madden

  • Partner
  • Cayman Islands
Henry Mander
Henry Mander
  • Henry Mander

  • Partner
  • Cayman Islands
Ian Mann
Ian Mann
  • Ian Mann

  • Partner
  • Hong Kong
William Peake
William Peake
  • William Peake

  • Partner
  • London
Lorinda Peasland
Lorinda Peasland
  • Lorinda Peasland

  • Consultant
  • Hong Kong
Chai Ridgers
Chai Ridgers
  • Chai Ridgers

  • Partner
  • Hong Kong
Nicola Roberts
Nicola Roberts
  • Nicola Roberts

  • Partner
  • Hong Kong
  • Singapore
Paul Smith
Paul Smith
  • Paul Smith

  • Partner
  • Cayman Islands
Andrew Thorp
Andrew Thorp
  • Andrew Thorp

  • Partner
  • British Virgin Islands
Jessica Williams
Jessica Williams
  • Jessica Williams

  • Partner
  • Cayman Islands
Jayson Wood
Jayson Wood
  • Jayson Wood

  • Partner
  • Cayman Islands

Better late than never: BVI Commercial Court confirms a holistic approach to the introduction of new arguments in ongoing proceedings

In the decision of Sumitomo Mitsuitrust (UK) Ltd and others v Spectrum Galaxy Fund Ltd, Justice Jack granted the claimants permission to amend their statement of claim to include arguments not originally pleaded. 

After the defendant had filed its defence and following the exchange of witness statements, the claimants sought permission to file and serve a reply outside the 14-day period permitted under the civil procedure rules. The defendant opposed the application on the grounds that the draft reply to the defence amounted to the claimants pleading a new alternative case thereby giving them "a second bite of the cherry’" which was prohibited by case law.

The Court refused permission to serve the reply but granted the claimant and defendant permission to amend their statement of claim and defence respectively. In doing so, the Court noted that the modern approach to pleadings is to ensure that the parties have proper notice of the case against them, as opposed to focusing on whether old technical rules of pleadings have been observed. When a party is looking to introduce new arguments in ongoing proceedings, this requires a holistic approach to be taken which is guided by case management principles and the overriding objective

The ruling recognises that a party’s analysis may progress throughout a case and suggests there may be scope to change approach in response to new evidence. However, the Court will only permit pleadings to be varied where it is fair to do so. In this case the factors that influenced the Court’s decision were:

  1. while the new points the claimant sought to put forward technically constituted a new case, they were closely bound up with the existing pleadings;
  2. a trial date had not yet been set, which meant there was ample opportunity for further disclosure and for supplemental witness statements to be served if appropriate; and
  3. importantly, the defendant would be afforded an opportunity to respond to the new arguments raised and therefore would not be prejudiced.

As to how the new arguments should be introduced, again the Court ruled that it would depend on the circumstances of the case. Here, Justice Jack considered that the trial judge would likely be better assisted and time would likely be saved by all arguments being incorporated into an amended statement of claim and defence, as opposed to being spread across separate documents. 

Better late than never: BVI Commercial Court confirms a holistic approach to the introduction of new arguments in ongoing proceedings