Better late than never: BVI Commercial Court confirms a holistic approach to the introduction of new arguments in ongoing proceedings
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:
- while the new points the claimant sought to put forward technically constituted a new case, they were closely bound up with the existing pleadings;
- 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
- 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.
