Kent v Mullally
[2015] WADC 117
•30 SEPTEMBER 2015
KENT -v- MULLALLY [2015] WADC 117
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 117 | |
| Case No: | CIV:960/2011 | 7 SEPTEMBER 2015 | |
| Coram: | DAVIS DCJ | 30/09/15 | |
| PERTH | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to amend defence allowed | ||
| PDF Version |
| Parties: | CHRISTOPHER KENT PATRICK MULLALLY PAUL D'AMICO RONALD WILLIAM BOWER |
Catchwords: | Practice and procedure Late application to amend defence Whether amendment should be allowed Turns on own facts |
Legislation: | Limitation Act 2005 s 3, s 35 |
Case References: | Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd (No 2) [2009] WASCA 33 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 FS [2007] WASAT 202 GC and PC [2014] WASAT 10 Hooker Corp Ltd v Commonwealth (1986) 65 ACTR 32 May v Thomas [2008] WASCA 215 Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 Neilson v City of Swan [2006] WASCA 94 Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156 The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323 Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
PATRICK MULLALLY
First Defendant
PAUL D'AMICO
Second Defendant
RONALD WILLIAM BOWER
Third Party
Catchwords:
Practice and procedure - Late application to amend defence - Whether amendment should be allowed - Turns on own facts
Legislation:
Limitation Act 2005 s 3, s 35
Result:
Application for leave to amend defence allowed
Representation:
Counsel:
Plaintiff : Mr E J Myers
First Defendant : In person
Second Defendant : No appearance
Third Party : No appearance
Solicitors:
Plaintiff : Bradley Bayly Legal
First Defendant : Not applicable
Second Defendant : Not applicable
Third Party : Not applicable
Case(s) referred to in judgment(s):
Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd (No 2) [2009] WASCA 33
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
FS [2007] WASAT 202
GC and PC [2014] WASAT 10
Hooker Corp Ltd v Commonwealth (1986) 65 ACTR 32
May v Thomas [2008] WASCA 215
Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51
Neilson v City of Swan [2006] WASCA 94
Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290
1 DAVIS DCJ: The defendants have made a late application for leave to amend their defence. The application for leave to amend is opposed by the plaintiff.
2 For the reasons which follow I will allow the defendants' application.
Background to the application
3 The following is a summary of the background to the plaintiff's claim against the defendants and what has occurred in the action, which I have taken from the pleadings, the affidavit of Mr Mullally sworn in support of the defendants' application and the parties' submissions.
4 On 13 December 2005 the plaintiff had an accident at work, as a result of which he suffered a cervical spine injury, injuries to both shoulders and a consequent psychiatric injury, which was initially diagnosed as Adjustment Disorder with depressed mood and then diagnosed as chronic Major Depressive Disorder.
5 The plaintiff engaged Workclaims Australia to represent him on his claim against his employer for workers compensation. The second defendant, Mr D'Amico, was the registered proprietor of Workclaims. The first defendant, Mr Mullally, was employed by Workclaims and represented the plaintiff in the workers' compensation proceedings.
6 In March 2008 the plaintiff's claim against his employer was settled.
7 After that settlement, the defendants then carried out some work for the plaintiff in relation to a common law claim against the occupier of the premises on which the plaintiff had suffered his injury. The defendants wrote two letters of demand to the occupier dated 8 October 2008 and 8 December 2008, claiming damages for the plaintiff as a result of the occupier's alleged negligence. When that claim did not resolve, the defendants instructed a solicitor, now joined in this action as the third party, to issue a writ against the occupier. That writ was issued on 9 April 2009.
8 By the time of the instructions from the defendant to the third party and the consequent issue of the writ, the limitation period for the claim against the occupier had already expired. It had expired on 12 December 2008. The plaintiff's action against the occupier was subsequently struck out on the basis that it was statute barred.
9 The plaintiff then commenced this action against the defendants, claiming damages both in contract and negligence, for their failure to advise him about the limitation period and that he would lose his right to bring a claim against the occupier if legal proceedings were not commenced on or before 12 December 2008.
10 The writ in this matter was filed on 22 March 2011 and the statement of claim filed 3 February 2012. A defence was filed on 21 March 2012.
11 The action was initially listed for trial for five days commencing on 11 November 2013. The trial dates were vacated and the listing conference adjourned from time to time until 27 October 2014 when trial dates were listed for 23 - 27 March 2015.
12 On 16 February 2015 the defendants applied for leave to join the third party in this action. Consequently orders were made on 5 March 2015 giving the defendants leave to issue a Third Party Notice and vacating the trial dates.
13 In the third party statement of claim dated 27 May 2015 filed by the defendants, the plaintiff's history of depression was pleaded in detail, with the following claim against the third party:
23. Due to the facts pleaded in paragraphs 16 to 22 hereof the third party knew or ought to have known that the plaintiff was suffering a mental disability within the meaning of that term as contained in the Limitation Act 2005 (the LA).
24. The plaintiff suffered a mental disability from the 6th July 2006 and by the time the third party issued the writ of summons as pleaded in paragraph 10 here on 9th April 2009, the only period of time which had elapsed that counted in the reckoning of the limitation period for the plaintiff was from the 12th December 2005 until the 6th July 2006 being a period of 209 days.
25. The plaintiff at all material times was without a guardian.
26. By virtue of the operation of s35 of the LA the time during which the plaintiff was without a guardian did not count in the reckoning of the limitation period for the commencement of the [occupier] action.
27. When the third party issued the writ of summon as pleaded in paragraph 10 hereof the plaintiff's cause of action was not statute barred against [the occupier].
28. If the plaintiff has been denied the chance to recover damages against [the occupier], it is because of the negligence of the third party, his servants or agents.
14 Particulars of the alleged negligence of the third party then followed.
15 On 19 June 2015 the third party filed a defence in which these allegations were denied or (in relation to par 25 of the third party statement of claim) not admitted. The third party pleaded in the alternative that if the defendants' allegations in par 28 of the statement of claim are made out, then the defendants and third parties are concurrent wrongdoers and, as pleaded in par 17(c) of the third party's defence:
by force of section 5AK of the Civil Liability Act, in relation to the plaintiff's claim against the defendants,the defendants' liability is limited to that proportion of the loss and damage claim, if any, that this Honourable Court considers just having regard to the extent of the defendants' responsibility for the loss or damage.
16 After directions in the third party proceedings, a new trial date was set for 14 - 18 December 2015. Orders were made on 8 July 2015 which, inter alia, gave the third party liberty to appear at the trial of the action and to take such part as the trial judge shall direct, and to be bound by the result of the trial, with the question of the liability of the third party to the defendants to be tried at or immediately after the trial of the action, as the judge shall direct.
17 By chamber summons dated 15 July 2015 the defendants applied to amend their defence. The proposed amendment is to add two new pars 13 and 14 which read as follows:
13. Further the plaintiff was at all material times:
13.1 suffering from a mental disability which was first diagnosed on or about the 3rd July 2006;
13.2 Unable to make reasonable judgments in matters relating to his person or property;
13.3 was without a guardian.
14. As a consequence of the matters pleaded in paragraph 13 hereof the plaintiff's claim against [the occupier] was not statute barred on the 9th April 2009 and the allegations made against the defendants in paragraphs 12, 15, 16 and 17 of the Statement of Claim are denied.
The relevant sections of the Limitation Act 2005 relied on in the proposed amendment to the defence
18 Section 35 of the Limitation Act 2005 provides:
35. Suspension of time while person with mental disability is without guardian
(1) If -
(a) a person is suffering a mental disability at any time after a cause of action accrues to the person; and
(b) during the time in which the person is suffering the mental disability the person is without a guardian,
the time during which the person is without a guardian does not count in the reckoning of a limitation period for commencing an action on the cause of action.
(2) Despite subsection (1), an action on the cause of action cannot be commenced if 12 years have elapsed since the cause of action accrued.
(3) This section is subject to section 36.
mental disability, in relation to a person, means a disability suffered by the person (including an intellectual disability, a psychiatric condition, an acquired brain injury or dementia) an effect of which is that the person is unable to make reasonable judgments in respect of matters relating to the person or the person's property; …
20 'Guardian' is also defined in s 3:
guardian, in relation to a person with a mental disability (person A), means a person who -
(a) is either a guardian of person A or the administrator of person A's estate, or both; and
(b) has, under the guardianship order, the administration order, or the provisions of the Guardianship and Administration Act 1990, as is relevant to the case, the function of considering the appropriateness of commencing an action on behalf of person A,
and in this definition the terms 'administrator', 'administration order', 'guardian' and 'guardianship order' have the respective meanings that they have in the Guardianship and Administration Act 1990 section 3(1); …
The evidence and the submissions in the application for leave to amend
21 In support of the application for leave to amend the defence, the first defendant, Mr Mullally, filed an affidavit which he swore on 3 July 2015 annexing four medical reports which addressed the plaintiff's psychiatric condition, namely his depression:
(a) a report from Dr Julia Charkey-Papp, psychiatrist, dated 4 August 2006;
(b) a report from Dr Charkey-Papp dated 21 January 2008;
(c) a report from Dr Ross Manners, psychiatrist, dated 23 January 2009; and
(d) a report from a clinical psychologist, Peta Smith, dated 20 February 2009.
22 In Mr Mullally's affidavit he stated that in the course of reviewing evidence, including expert medical evidence, for the preparation of the statement of claim against the third party 'it became readily apparent that the plaintiff at all material times was suffering from a mental disability'.
23 What was submitted by Mr Mullally was that if the medical evidence establishes that the plaintiff had the benefit of s 35 of the Limitation Act then his action against the occupier was not statute barred when the writ was issued and the defendants have a complete defence to the action.
24 In submissions Mr Mullally argued that the medical evidence established that the plaintiff had been severely depressed, and that his depressed state had affected his functioning. The plaintiff's depression had had an impact on his relationships, his finances and his accommodation. Mr Mullally also placed reliance on the plaintiff's reported symptoms of problems with his memory, and that he was confused and anxious, had difficulties concentrating and difficulties in organising his personal affairs and finances, including reporting that he had felt 'geriatric, paralysed … crippled, and implied that he had been unable to function properly' (Dr Charkey-Papp's report of 21 January 2008).
25 Reliance was also placed in particular on the following parts of Dr Manners' report of 23 January 2009 in which Dr Manners noted that:
(a) on 26 September 2006 on simple testing of cognitive functioning the plaintiff had 'reduced cognitive functioning which was a result of his depressed mood';
(b) on 6 June 2007 a mental state examination revealed the plaintiff to be 'anxious with depressed mood and a degree of confusion. His thinking was not clear';
(c) the plaintiff's concentration was poor. His ability to stay on task 'is very limited' and in Dr Manners' opinion 'his reasoning skills are reduced'; and
(d) 'He has reduced self-esteem and significant diminution [in the] ability to think and concentrate. He is quite indecisive'.
26 In the report from the psychologist, Ms Smith, she referred to the plaintiff's inability to concentrate, memory difficulties, anxiety and depressed mood and stated that in her opinion the plaintiff was not ready or able to participate in a return to work program. She was also of the view that the plaintiffs' ability to reason, concentrate or organise himself to cope effectively with daily life appeared to be 'significantly compromised'.
27 Mr Mullally submitted that the reports supported an argument that certainly during 2006 the plaintiff was 'protected' by s 35 of the Limitation Act.
28 The plaintiff opposed the proposed amendment which alleges that he was unable to make reasonable judgments in matters relating to his person or property.
29 In opposition to the application the plaintiff's solicitor, Christopher James Barclay swore an affidavit annexing the following further medical reports:
(a) a report from Dr Ross Manners dated 8 July 2015; and
(b) two reports from Dr Laurence Blumberg, psychiatrist, dated 17 December 2014 and 21 July 2015.
30 In the report from Dr Manners dated 8 July 2015 he stated that the plaintiff had been a patient for about 9 years, and:
He suffered a major depressive episode following a work related injury. This depressive episode became chronic. While his symptoms wax and wane they do not ever completely go away despite appropriate management.
Throughout all of my contact with Mr Kent which has been extensive there is no indication that he has not been capable of managing his own affairs. I am of the opinion that he can continue to manage his own affairs and instruct his legal term appropriately during the upcoming legal proceedings.
31 In the report from Dr Blumberg dated 21 July 2015, he stated:
In my opinion. Mr Kent 'by reason of mental illness, defect or infirmity, however occasioned' should not be declared by the Court to be incapable of managing his affairs in respect of any proceedings.
Despite Mr Kent's psychiatric illness he has been able to manage his own affairs. From the history and collateral history provided there is no indication that he has not been capable of managing his own affairs including paying bills credit cards and budgeting.
32 In submissions, counsel for the plaintiff referred also to other parts of Dr Charkey-Papp's reports in which she had noted that the plaintiff appeared to remain independent, without the need for supervision, or to be accompanied or cared for on a regular basis (Dr Charkey-Papp's report of 4 August 2006) and that the plaintiff had been functioning better than before (Dr Charkey-Papp's report of 21 January 2008). In both reports, Dr Charkey-Papp had found the plaintiff fit for work. Dr Manners in his report of 23 January 2009 had also conducted a mental examination, noting that there was no evidence of cognitive impairment and that he had good insight and reasonable judgment. (Dr Manners found, however, that the plaintiff was not fit for work).
33 In light of these parts of the medical reports and the opinions in the two most recent reports from Dr Manners and Dr Blumberg, counsel for the plaintiff argued that there was no factual basis for the proposed amendment to the defence and thus no reasonable ground for the defence.
Principles on application for leave to amend a pleading
34 In general, a party should be permitted to amend their pleading so that the court may decide all matters in issue between the parties, unless the amendment would cause an injustice to the other party which could not be adequately remedied, for instance by an order for costs: May v Thomas [2008] WASCA 215 [33] (Newnes AJA; Buss JA agreeing).
35 When considering whether it is just to grant leave to amend, the starting point is that the court will not grant leave to a party to make an amendment in a form which would be struck out: Hooker Corp Ltd v Commonwealth (1986) 65 ACTR 32, 38. A pleading is liable to be struck out, among other things, if it is embarrassing in form or if it discloses no reasonable cause of action or defence.
36 Even if the proposed amended pleading does disclose a reasonable cause of action or defence, where the application for leave to amend is brought at a late stage in the proceedings, particularly just before trial, whether to grant leave to amend is discretionary, and is to be considered taking into account and balancing the following factors:
1. the reasons for delay in making the application;
2. the prejudice to the applicant if leave is not granted;
3. the prejudice to the other party or parties if leave is granted; and
4. the impact on the public interest if leave is granted.
See Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290 and Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323.
37 While a just resolution of proceedings remains paramount in the exercise of the discretion on whether or not to grant leave to amend, and the parties should be given a proper opportunity to plead their case, limits may be placed upon re-pleading when delay and cost are taken into account. An order for costs may not always provide sufficient compensation and therefore achieve a just resolution: Aon Risk Services Australia Ltd v Australian National University [98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
38 In relation to prejudice, a relevant factor weighing in favour of allowing leave to amend is that the proposed amendment does not extend in any material way the factual ambit of the action and the amendment is not of such a nature that, if allowed, would prejudice the other party in the conduct of the trial: Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156 [21] and [22].
39 As to the impact on the public interest, the proper exercise of the court's discretion involves taking into account inefficiencies in the use of the court as a publicly funded resource arising from the vacation or adjournment of trials (which has an impact not only upon the parties but also other litigants seeking a resolution of their cases), and the need to maintain public confidence in the judicial system: Aon [5], [27] and [35] (French CJ), [111], [113] and [114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Is the proposed pleading liable to be struck out?
40 The principles applicable to whether a pleading will be struck out as disclosing no reasonable cause of action or defence were restated by the Court of Appeal in Neilson v City of Swan [2006] WASCA 94 [18] (Buss JA; Wheeler and Pullin JJA agreeing). While these principles are couched by reference to a plaintiff's statement of claim, they apply to any pleading. Briefly, a pleading should be struck out only where the case is really not arguable – 'so clearly untenable that it cannot possibly succeed'. All the facts alleged in the pleading must be accepted as true. Great care must be exercised to ensure the party is not improperly deprived of the opportunity for trial. As a general rule a party is entitled as of right to have his case heard, the facts found and then argue questions of law. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the party that the pleading should be struck out.
41 There is no authority which I have been able to find, or counsel for the plaintiff has been able to find, which has considered the meaning of 'mental disability' in s 3 or the application of s 35 of the Limitation Act.
42 However, the language used in the definition of 'mental disability' in s 3 of the Limitation Act is very similar to the provisions of s 3, s 43 and s 64 of the Guardianship and Administration Act 1990 providing for the appointment of a guardian or administrator. In addition, pursuant to the Limitation Act s 3 and the definition of 'guardian', the words 'administrator', 'administration order', 'guardian' and 'guardianship order' have the respective meanings that they have in the Guardianship and Administration Act.
43 Under the provisions ofs 43(1) of the Guardianship and Administration Act the State Administrative Tribunal can make a guardianship order if it is satisfied that a person is 'unable to make reasonable judgments about matters relating to his person'.
44 Pursuant to s 64(1)(a) of the Guardianship and Administration Act, the State Administrative Tribunal can appoint an administrator in respect of a person's affairs if the tribunal is satisfied that a person ' is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate'.
45 'Mental disability' is defined in s 3 of the Guardianship and Administration Act as including an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
46 At common law there is a presumption that the plaintiff, a person of full age, is capable of managing his affairs and this presumption applies unless and until the contrary is proved: see Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd (No 2) [2009] WASCA 33 [8] and Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 [36].
47 Under s 4(3) the Guardianship and Administration Act, this presumption has statutory force and it has been said that clear and cogent evidence is required to rebut the statutory presumption of capacity: GC and PC [2014] WASAT 10 [36].
48 In relation to s 64 of the Guardianship and Administration Actit has been held that determining a person's capacity, namely, whether a person is unable by reason of a mental disability to make reasonable judgments,involves both subjective and objective tests: FS[2007] WASAT 202 [100] - [107] (Barker J, Ms Toohey & Mr Mansveld). The determination:
(a) first involves considering the person's capacity in relation to his or her actual estate and not 'ordinary routine affairs'. This is a subjective test: FS [103] - [105].
(b) secondly involves an objective test of the ability of that person to engage in a particular mental process: FS [106]. In a case which involves the ability to pursue a damages claim in respect of an accident (such as a motor vehicle or work related accident), this will touch upon the person's ability to give appropriate instructions to his or her advisers for the institution and conduct of proceedings, the person's capacity to understand matters upon which instructions might need to be given, and the capacity to appreciate the nature and extent of the available claim and to exercise reasonable judgmentupon possible settlement of it:FS[107]; Flemming v Gibson (2001) 34 MVR 40 [15]. The making of a 'reasonable judgment' is the outcome of a process that involves knowledge, understanding and evaluation: FS [109].
49 The effect of all of this, as explained in FS [110]:
… is to require the Tribunal to consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances.
50 In The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 [45] Pritchard J applied the principles in FS [110] in the context of deciding, at common law, the issue of the capacity of a party to enter into a contract and thus the validity of that contract.
51 In my view the principles in FS should be applied in the determination of the question of whether, under s 35 of the Limitation Act, a person is suffering from a mental disability at any time after a cause of action accrues to that person.
52 Having regard to FS,and given the information before me in all of the medical reports, I am not able to conclude that, however the facts are found, there is no basis for the defendants' contention that the plaintiff suffered from a mental disability from or during 2006. That is a question of fact which needs to be determined on evidence about all of the circumstances which applied at that time, including medical evidence. It may well be that the defendants will not be able to produce sufficiently clear and cogent evidence to rebut the presumption of capacity. However, I am not able to conclude that the proposed amendment is so clearly untenable that it cannot possibly succeed.
53 Accordingly I am not satisfied that the proposed amendment discloses no reasonable defence.
Other factors relevant to the discretion to grant leave to amend
54 I turn now to consider the four discretionary factors relevant to whether I should allow the amendment sought by the defendants.
55 There is, in my view, no adequate reason given for the delay in making the application. It is apparent from the affidavit of Mr Mullally that the argument about s 35 of the Limitation Act only occurred to him in the preparation of the statement of claim against the third party.
56 If the plaintiff did suffer from a mental disability as defined in s 3 of the Limitation Act, this is something about which the defendants were aware or ought to have been aware at a much earlier stage. The first two medical reports which are annexed to Mr Mullally's affidavit must have been in the defendants' possession while they were representing the plaintiff in the workers' compensation jurisdiction and before settlement of his workers' compensation claim. The last two reports must have been in the defendants' possession shortly after their receipt. All of these medical reports should have been reviewed at the time the defendants first filed their defence in this action in March 2012. If there was any issue about the mental ability of the plaintiff, this should have been raised at that time. In other words, the proposed amendment raises an argument which could easily have been raised before.
57 In relation to prejudice, both to the applicant defendants and to the other parties in this action, I need to bear in mind that the subject matter of the proposed amendment is already an issue in the third party proceedings. In addition, the plaintiff has already obtained medical reports from each of Dr Manners and Dr Blumberg which to some extent address the issues raised in the proposed amendment. It could not, therefore, be said that the amendment would extend in a material way the factual ambit of the action such as to impact on the plaintiff's case at trial, or the third party proceedings.
58 While the factual issue of the plaintiff's mental ability will require the leading of further evidence at trial, including medical evidence, I do not consider there is any significant prejudice to the plaintiff if the amendment is allowed.
59 Finally, when looking at the impact on the public interest the principal consideration is whether allowing the amendment is likely to necessitate an adjournment of the trial and the consequent waste of costs and court resources.
60 While this application has been made at a late stage, it will not require the vacation or adjournment of the existing trial dates, wasted costs or the waste of the court's resources. Additional trial days are available immediately following the scheduled trial dates to ensure that the trial can be completed without any further delay.
Conclusion
61 Although the delay in bringing the application has not been adequately explained, as was stated in Aon at [111], all matters relevant to the exercise of a power to permit amendment should be weighed.
62 Balancing all of these factors, I am satisfied that the interests of justice favour the granting of leave to the defendants to amend.
63 I therefore allow the defendants' application. I will hear from the parties on the orders which I should make, including further directions necessary for the trial (such as leave to adduce expert evidence), and the issue of costs.
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