The Third Defendant to a principal proceeding brought an application for leave to file an amended defence. The amended defence would re-plead the Third Defendant’s entire defence, that the Plaintiffs were estopped, by reason of an Anshun estoppel, as the Plaintiffs should have brought the claims against the Third Defendant in a previous separate proceedings that had already been judged. The Third Defendant reasoned that the Plaintiffs were estopped on the basis that the claims brought against the Third Defendant constituted an abuse of process.
His Honour acknowledged that the Third Defendant had suffered considerable illnesses during the initial stages of the proceedings, and that the filing of the defence occurred at a time that the Third Defendant was affected by treatment for his illnesses. Nevertheless, his Honour noted that the admissions made in the Third Defendant’s defence had been on the record for a long period of time, and in the Third Defendant’s affidavit supporting the amended defence, he did address whether those admissions previously made were in fact not correct and warranted a denial. Coupled with his Honour’s belief that the scope of the Third Defendant’s admissions he sought to withdraw were to be substituted for denials, non-admissions, and no pleading at all, his Honour determined that the interests of justice would not be served by granting leave to file an amended defence in its present form.
His Honour also determined that there was no basis for an Anshun estoppel, as the previous proceedings were different, and the current proceedings against the Third Defendant were different in the broader scope of the facts giving rise to the claim against the Third Defendant.
While his Honour would not grant leave on the amended pleading in its present form, his Honour did conclude that the Third Defendant ought to be given an opportunity to formulate a pleading which would warrant further consideration by the Court.
On these bases the court ordered to refuse to grant leave for the Third Defendant to file an amended defence in its present form, that the Third Defendant could formulate amended pleadings, but required the amended pleading to be formulated by 4 June 2021 for the Court’s consideration, and that the Third Defendant pay the Plaintiffs’ costs to the application.
Sophie Gibson appeared with M Wyles QC, instructed by Hall & Wilcox.
The judgment is available here.