The High Court has allowed an amended defence in a dispute between D.D. Growth Premium Master Fund (in liquidation) and an investment servicing company, finding the changes raised legal consequences of matters already pleaded and introduced no new material facts.
In a judgment delivered on 20 December 2016, Mr Justice Brian J. McGovern said the amendment would allow the real issues between the parties to be determined at trial. He said the plaintiff had shown no prejudice beyond costs associated with the motion, and that discovery was not due to be exchanged until 30 March 2017.
The defendant had sought leave to amend its defence under the Rules of the Superior Courts or the court’s inherent jurisdiction. The plaintiff opposed the main amendment, arguing that it radically changed the nature of the defence and introduced new matters. It also objected to bearing the costs of responding to what it considered an unnecessary amendment.
The proposed change to paragraph 36 identifies persons against whom, the defendant says, the plaintiff’s claims could and should have been made. It also pleads that those claims are statute-barred and asserts that the plaintiff is responsible for those persons’ acts under section 35(1)(i) of the Civil Liability Act 1961, as amended. Those are the defendant’s pleaded positions, not findings made at this stage.
The judge said the paragraph 36 amendment reiterated and amplified an existing paragraph 35(iv) plea that the alleged loss was caused or contributed to by the plaintiff, its directors, other persons or events outside the defendant’s control or unrelated to its duties. He considered the new particulars and legal pleas appropriate for determination at trial. The court did not decide whether the claims are time-barred or whether the plaintiff is legally responsible for the acts alleged.
The judge also said there had been no delay in bringing the application and that no explanation for omitting the amendments from the original defence was of particular significance in the circumstances. The defendant was entitled to amend its defence in the terms of its draft.
Separately, the court had already ordered on 19 December 2016 that B.N.Y. Mellon Fund Services (Ireland) D.A.C. be substituted as defendant because the original defendant’s assets and liabilities had transferred to it by operation of law. The judgment records that order as already made; the motion’s remaining issue was permission to amend the defence.