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Re: amended poc help
You mean the facts were always known by the claimant not the defendant, don't you?
Right so now they are directly challenging your defense, rather then stating why they are entitled to the claim?
If so you can refuse consent on the grounds that the amended POC are a direct defense to your 9defendants) defense and not that of a reason for claim or supportive of any entitlement, legal or under contract, to issue such claim. They can not Make a claim against the defendants defense to dispute the defense as that is what a court hearing/trail is for. It (the amendment) cl;early prejudices the defendant since the amended POC are a direct response to defendants defense and not reason for issuing of the claim against the defendant with supporting documentation that supports the claim. Also section 35 of the Limitation Act 1980 prevents them from making any new claims in currently pending preceedings, and they may only admend the claim based on the same facts.
So if they are refuting your defence with their amendments then they are buggered.
Oh course am assuming that that is what they are now trying to do. Now, if you can confirm if am correct or not we can then look at seeing if we can push for strike out of their claim altogether.
You mean the facts were always known by the claimant not the defendant, don't you?
Right so now they are directly challenging your defense, rather then stating why they are entitled to the claim?
If so you can refuse consent on the grounds that the amended POC are a direct defense to your 9defendants) defense and not that of a reason for claim or supportive of any entitlement, legal or under contract, to issue such claim. They can not Make a claim against the defendants defense to dispute the defense as that is what a court hearing/trail is for. It (the amendment) cl;early prejudices the defendant since the amended POC are a direct response to defendants defense and not reason for issuing of the claim against the defendant with supporting documentation that supports the claim. Also section 35 of the Limitation Act 1980 prevents them from making any new claims in currently pending preceedings, and they may only admend the claim based on the same facts.
If a matter is raised in a defence which was not pleaded in the original claim, can a claimant amend the claim after the expiry of the limitation period, relying on CPR 17.4(2)? The Court of Appeal had to consider this in Goode v Martin [2002] 1 All ER 620. Here, the claimant sought to amend the claim to rely on facts raised in the defence which had not been stated in the original claim. Although permission to amend was refused at first instance, the Court of Appeal reversed the decision and held that a narrow construction would involve an unjustified restriction on the claimant's right to access to a court under Article 6 of the European Convention on Human Rights (Convention). The Court of Appeal decided that for CPR 17.4(2) to comply with the Human Rights Act 1988 and Article 6 of the Convention, the rule should be interpreted as if it read:
In Charles Church Developments Ltd v Stent Foundations Ltd [2006] EWHC 3158, the High Court went further and held that where there are two defendants to an action and one of them pleaded certain facts by way of a defence, the claimant could adopt those facts as the basis of a new claim against the other defendant after the expiry of the limitation period.
"the court may allow an amendment whose effect will be to add... a new cause of action but only if the claim arises out of the same set of facts as are already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."
However, this will only apply where a party is seeking to adopt points raised in a defence rather than refuting them. Goode was distinguished in Compagnie Noga d'Importation et D'exportation v Australia and New Zealand Banking Group Ltd and others [2005] EWHC 225 (Comm), where the claimant sought to use points made in the defence as a means of bringing a further claim rather than simply adopting points already made in the defence. In Goode, the amendments sought were to adopt the allegations in the defence, but here the claimant was seeking to refute the defendants' allegations and introduce new facts and a new cause of action. In Goode, the cause of action remained the same and the facts relied on were those originally alleged or advanced in the defence. However, in Noga, the new claims were wholly different and distinguishable from the claims in the original claim and therefore were disallowed.In Charles Church Developments Ltd v Stent Foundations Ltd [2006] EWHC 3158, the High Court went further and held that where there are two defendants to an action and one of them pleaded certain facts by way of a defence, the claimant could adopt those facts as the basis of a new claim against the other defendant after the expiry of the limitation period.
Oh course am assuming that that is what they are now trying to do. Now, if you can confirm if am correct or not we can then look at seeing if we can push for strike out of their claim altogether.
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