Keogh v Medical Board of South Australia - [2006] SASC 285

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
KEOGH v MEDICAL BOARD OF SOUTH AUSTRALIA & ANOR
[2006] SASC 285
Reasons for Ruling of The Honourable Justice Perry
15 September 2006
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - MEDICAL PRACTITIONERS - DISCIPLINE, AND REMOVAL FROM AND RESTORATION TO REGISTER - PROCEDURE EVIDENCE AND APPEAL
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE
Application for judicial review seeking order quashing the decision of the Medical Board which dismissed a complaint by the plaintiff relating to alleged unprofessional conduct of the second defendant, a pathologist – the plaintiff was convicted of the murder of his fiancée, who drowned in the bath – the second defendant gave evidence at the plaintiff’s trial as to an autopsy performed by him on the body of the deceased, and as to opinions formed by him as to the cause of death – the plaintiff alleged that the autopsy had been performed negligently and the opinions expressed by the second defendant were not properly and scientifically based – three pathologists, who comprised the majority of the members of the Board, expressed in internal memoranda circulated to the other Board members during their consideration of the matter strong views supporting a finding of unprofessional conduct, but when the decision was delivered, the Board found that the allegations of unprofessional conduct had not been made out – the plaintiff claimed that the Board’s proceedings were tainted by irregularities not only associated with the decision making process but that there were other procedural shortcomings justifying the quashing of the Board’s decision – held, dismissing applications to set aside service of the proceedings or to strike out a proposed amended statement of claim, that with minor exceptions the plaintiff’s claim was reasonably arguable and that it should be allowed to proceed – order that it proceed under the 2006 Civil Rules.
Medical Practitioners Act s 5(1), s 54(1)(d), s 54(2); Supreme Court Rules r 3.04(d), r 98.03, r 98.04(1), 4 98.08(1) and 4 98.05; Supreme Court Civil Rules 2006 r 8, r 200(1) and r 200(4); Limitation of Actions Act 1936 s 48, referred to.
Dimitropoulos v District Court of South Australia (1998) 199 LSJS 7; In re a Practitioner of the Supreme Court [1927] SASR 58; R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, considered.

KEOGH v MEDICAL BOARD OF SOUTH AUSTRALIA & ANOR
[2006] SASC 285
Civil: Application for Judicial Review

PERRY J. This is an application for judicial review of a decision of the Medical Board of South Australia (“the Board”) in which the applicant seeks an order that a decision made by it be quashed and that the matter be referred back to the Board to be determined according to law.
The plaintiff, Henry Vincent Keogh (“Mr Keogh”), stood trial in March 1995 for the murder of his fiancée Anna-Jane Cheney, who died in the bath on 18 March 2004.
The jury failed to agree upon a verdict, but at a subsequent re-trial held in August 1995, Mr Keogh was convicted of the crime of murder and sentenced to life imprisonment, with a non-parole period of 25 years.
The second defendant, Dr Colin Henry Manock (“Dr Manock”) was a material prosecution witness at the committal proceedings and at both trials. At the relevant time he was a forensic pathologist employed as such by the State Forensic Science Centre. He gave evidence of his autopsy procedures and expert opinion evidence as to the cause and manner of death.
Pursuant to s 54(1)(d) of the Medical Practitioners Act 1983 (“the Act”),[1] Mr Keogh laid a complaint before the Board, in which he alleged unprofessional conduct on the part of Dr Manock. In his complaint, Mr Keogh advanced criticisms of the procedures adopted by Dr Manock in the process of the autopsy.
[1] The Act since been repealed and replaced by the Medical Practice Act 2004, various sections of which came into force progressively on 21 April 2005, 26 August 2005 and 1 January 2006.
Mr Keogh also alleged unprofessional conduct on the part of Dr Manock with respect to the manner in which he reached his opinion as to drowning being the cause of death, as to the intervention of another person in causing the death, and as to the manner in which he gave evidence at the trials.
Following the hearing before the Board, at which affidavit and oral evidence was tendered, on 22 June 2005 the Board dismissed Mr Keogh’s complaint, finding that unprofessional conduct on the part of Dr Manock had not been established. The Board delivered written reasons for its decision.
The present proceedings were commenced by an inter partes summons in which the Board was cited as defendant, filed on 9 September 2005. Under SCR r 98.03 a summons seeking judicial review may only be served provided that leave to do so has first been obtained from the court.
On 16 September 2005, on the ex parte application of Mr Keogh, I granted leave pursuant to SCR r 98.03 for the summons, together with the supporting affidavit of Mr Keogh and exhibits, to be served.
By order made on 21 December 2005, a Master gave leave to Mr Keogh to add Dr Manock as an additional defendant to the action. At the same time, the Master gave leave to serve the summons on Dr Manock.
After he had been served, Dr Manock applied, by notice for specific directions, for an order that leave to serve the summons and statement of claim upon him be set aside, or alternatively, that the summons and statement of claim be struck out.
Following the filing of affidavits for and against the making of the order sought, the application by Dr Manock came on for hearing before a Master, who, on 8 December 2005, reserved his decision.
Before pronouncing a decision, namely on 3 April 2006, the Master made an order referring the application to me for hearing and determination. This followed an amendment to the notice for specific directions issued by Dr Manock which, in addition to seeking an order that the leave to serve granted on 21 December 2005 be set aside, also sought an order that the leave granted by me on 16 September 2005 be set aside.
Subsequently, by order dated 4 May 2006, I ordered that the matter be adjourned for hearing by me on 28 June 2006.
By then, Dr Bleby appeared on behalf of the Board. Dr Bleby intimated that his brief was to assist the Court but otherwise not take an active part in the proceedings. He intimated that those instructing him had given discovery to the parties of the whole file generated by the Board with respect to the matter.
The discovery of that material prompted counsel for Mr Keogh to indicate that new material not previously seen by Mr Keogh or his advisers, gave rise to the need to consider applying to amend the statement of claim. An application to that end was duly made.
The matter came on for hearing as to all outstanding applications on 28 June 2006, following which I reserved my decision.
At the hearing I dealt with the application to file an amended statement of claim and the application to set aside service on both the Board and Dr Manock, the applications brought to strike out the statement of claim or to strike out the proceedings, and an application by Dr Manock for security for costs.
At an early stage of the hearing before me, Mr Swan, who appeared as counsel for Dr Manock, made a concession which he expressed in the following terms:
… We would effectively concede that if having heard argument in respect of the proposed amended statement of claim Your Honour was of the view that that ought to be capable of being argued and had it been there in the first place, leave could have been granted [to serve the proceedings], in effect, then there is not much point in going back to look at the original statement of claim.
In view of that concession, I will deal in these reasons only with the proposed amended statement of claim.
Applications for judicial review were formerly governed by SCR r 98. Under the procedure laid down by that rule, at the time of the filing of a summons seeking judicial review, the plaintiff must file an affidavit containing, inter alia, details of the relief sought, the grounds upon which the relief is sought and the facts relied upon (SCR r 98.04(1)).
Pursuant to SCR r 98.08(1), unless leave is given to the plaintiff to “amend his statement in his affidavit” or use further affidavits dealing with any new matters, no ground may be relied upon or any relief sought except the grounds and relief set out in the affidavit in support of the summons for leave to serve.
It has been held, in my view, rightly so, that under the Supreme Court Rules 1987, which I will call “the old rules”:
In order to obtain leave to serve the summons, the plaintiff must demonstrate at least a prima facie case first that the plaintiff himself has standing to seek the relief that he seeks; secondly, a prima facie case that there is an error of law on the face of the record and, thirdly that there is no compelling reason in the exercise of its discretion why a court ruling on the application would be likely to refuse what is discretionary relief.[2]
[2] Dimitropoulos v District Court of South Australia (1998) 199 LSJS 7 per Bleby J at 9.
The requirement that a prima facie case be demonstrated is no doubt a relic of the order nisi procedure which governed applications for judicial review before the enactment of SCR r 98.
At all events, in Dimitropoulos (supra), Bleby J eventually addressed the question whether or not leave to serve should be given by reference to whether or not the plaintiff had demonstrated that he had an arguable case.[3]
[3] (1998) 199 LSJS 9 at 12.
Pursuant to SCR r 98.05, on the hearing of an application for directions in an action for judicial review, the court may strike out the summons or such part of it as seeks judicial review:
… where on the evidence then before the court there is no reasonable prospect that the court would make any order in the nature of a judicial review.
Ordinarily, the evidence which would be before the court on an application to strike out a summons for judicial review under SCR r 98.05, would be the evidence contained in the affidavit filed by the plaintiff in support of the application to serve the proceedings.
The old rules have now been superseded by the Supreme Court Civil Rules 2006 (“the new rules”), which came into operation on 4 September 2006 (“the commencement date”). Rule 8 of the new rules provides in part:
(1)The general principle is that the old rules continue apply to-
(a) a primary action[4] commenced before the commencement date; …
[4] Rule 28 defines a “primary action” as an action that is, when commenced, “separate from other actions in the Court”.
So that on the face of it, the old rules continue to apply to these proceedings.
But pursuant to the new rules there is a simplified procedure applicable to actions for judicial review: see new rules 199 to 201 inclusive.
The old procedure whereby the plaintiff was obliged to obtain leave to serve the proceedings no longer applies. Under new r 200(1), if a plaintiff claims to be entitled to an order for judicial review, the action for judicial review:
… may be commenced but cannot proceed further in the Court without the Court’s permission”.
Pursuant to new r 200(4), the Court may grant permission if it is satisfied:
… that there is a reasonable basis on which the applicant might establish a right to an order for judicial review.
The new rules envisage that the question whether there is a reasonable basis of the kind described, is to be determined by reference to an affidavit stating the nature of the order sought and setting out in detail the grounds on which the applicant seeks the order for judicial review.
Use of the word “grounds”, does not suggest that it is necessary for the plaintiff seeking permission to proceed with the action to come into Court with evidence supporting the grounds.
Under the transitional provisions to be found in the new rules, (see r 8) the Court may “in a particular case, give a direction displacing the general principle to the extent that the Court thinks fit”, the “general principle” being that the old rules continue to apply to a primary action commenced before the commencement date.
In my view, given that the proceedings in this action are still at a very early stage, and given that the relevant procedures under the new rules are much more simple, it is better that the proceedings proceed under the new rules.
My view that the matter should be dealt with in that way, is supported by the concession to which I have referred made by Mr Swan.
The question whether the matter should proceed under the new rules was not adverted to during the course of argument before me. The new rules had not, at that stage, been promulgated and had not come into effect.
I considered re-opening the hearing to afford to counsel an opportunity to be heard on the issue, but eventually I decided against that course. In doing so, I reasoned that I would have come to the same conclusions as to all aspects of the matter if it was to be dealt with under the old rules, and to direct that the matter proceed under the new rules was essentially a matter which went to procedure only.
I think that the words in the new rules “reasonable basis” are satisfied if the statement of claim is reasonably arguable and if there is no reason apparent at this stage why judicial review would otherwise be refused.
I turn now to those two questions, that is, does the statement of claim raise an arguable case, and is there any reason apparent at this stage why judicial review would be refused.
Does the proposed amended statement of claim raise an arguable case?
The statement of claim alleges that the complaint made by Mr Keogh to the Board was in fact contained in three separate documents.
The first was a letter dated 11 December 2001 from Mr Keogh’s solicitor to the Board.
On or about 31 March 2004 he made a further complaint in substitution for the first complaint.
During the course of the proceedings before the Board, namely on 18 November 2004, Mr Keogh made a further complaint to the Board styled as a “further complaint”.
The composition of the Board which dealt with the complaints was:
Mr Richard Evans, barrister
Dr Mark Coleman, pathologist
Professor Ross Kalucy, psychiatrist
Professor Ian Maddocks, said by the plaintiff to be a pathologist, but described by Dr Manock as a surgeon
Professor Paul McDonald, pathologist
The Board held hearings on 18 December 2003, 15 July 2004, 3, 4 and 5 November 2004 and 17 December 2004.
Oral evidence had been completed on 5 November 2004 and oral submissions were made on the last day of the hearing, that is, 17 December 2004.
In the proposed amended statement of claim, Mr Keogh alleges a number of shortcomings on the part of the Board in the manner in which they conducted the proceedings.
Some of them relate to alleged procedural shortcomings which, if made out, would go towards sustaining a contention that the Board failed to act with due regard to procedural fairness. Other complaints alleged that the Board failed to consider many of the allegations made by Dr Keogh as to Dr Manock’s alleged unprofessional conduct; that the Board took irrelevant considerations into account, namely a report furnished by Dr Oettle; and that there was an irregularity in the decision making process, which I will explain in due course.
Alleged procedural shortcomings
Although the Board referred to the definition of unprofessional conduct in s 5(1) of the Act, it is clear enough from its reasons that in fact the test applied by the Board in dealing with the complaints was the common law test which finds expression in In re a Practitioner of the Supreme Court,[5] where the Full Court defined unprofessional conduct as conduct (in the context of legal practitioners) which:
… may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency.
[5] [1927] SASR 58 at 61.
“[U]nprofessional conduct” in s 5 of the Act is relevantly defined to include:
(a)improper or unethical conduct in relation to the practice of medicine;
(b)incompetence or negligence in relation to the practice of medicine;
(c)…
The difference in definitions may be important. It is not clear why the Board chose to limit itself to the common law definition.
The pleadings on this issue are reasonably arguable.
Mr Keogh contends that the Board erred in failing to conduct what he described as a “inquisitorial” inquiry. In fact, as is commonly the case, the inquiry before the Board proceeded in an adversarial fashion, with the complainant and the medical practitioner each advancing submissions in support of the cases which they presented.
Section 54(2) provides:
Where a complaint has been laid before the Board under this section the Board must inquire into the subject matter of the complaint …
That provision is subject to exceptions where the Board is of the view that the complaint is frivolous or vexatious, or where the Board itself lays a complaint before the Tribunal relating to the subject matter of the complaint before the Board.
I had thought that the process followed by the Board in that respect was unexceptional and could not seriously be criticised. However, Mr Game SC of counsel for Mr Keogh drew attention to several authorities on the point, including R v Australian Broadcasting Tribunal; ex parte Hardiman[6] where the High Court held that construction of the relevant statute might lead to the conclusion that a statutory authority owed a duty to investigate for itself matters of complaint.
[6] (1980) 144 CLR 13 at 32-33.
It is not for me on an application of this kind to determine how the Act now in question should be construed. I would allow the pleading to stand.
Mr Keogh raises a number of criticisms of the Board related to rulings which the Board made, limiting his then senior counsel Mr Kevin Borick QC to two days to call evidence, and strictly confining the time taken by Mr Borick for cross examination of Dr Manock. Those pleadings should be allowed to stand.
However, I would strike out from the proposed statement of claim allegations that the Board erred in refusing to hear so-called “similar fact” evidence of other autopsies in which it was suggested that Dr Manock had exhibited gross incompetence. The Board was entitled to confine its consideration of the matter to the particular allegations in question against Dr Manock, and to decline to investigate complaints of Dr Manock’s conduct in other matters.
In its consideration of the matter the Board relied on a report of a study by Dr Oettle of certain child autopsies conducted by the State Forensic Science Centre, in which Dr Oettle offered the view that the Centre met so-called international standards in 1994.
I think it arguable that the Board’s reliance upon the report of Dr Oettle was misconceived and may have led them into error.
Paragraph 34 of the proposed statement of claim alleges that in various respects the Board failed to address particular complaints which were advanced by Mr Keogh. Without going into the detail of those complaints, I have reached the view that on the alleged facts, the Board arguably failed to deal adequately with them.
Alleged irregularity in the decision making process
This was a matter to which no reference was made in the statement of claim as originally filed, but which is based on material which emerged later. More particularly, this complaint follows perusal by Mr Keogh’s advisers of the whole of the Board’s file which was disclosed by the legal representatives of the Board during the course of the proceedings before me, to the other parties and to the Court. The file contains certain memoranda produced by the three pathologists on the Board, who together constitute a majority.

On 8 November 2004, Professor Maddocks authored a memorandum setting out his views and conclusions as at that date, which he circulated to the other members of the Board. In the memorandum he criticises a number of aspects of the procedures followed by Dr Manock, including what he describes as:
[Statement of Claim 13.2]
The brevity of the notes which have survived, the paucity and possible inadequacy of specimens taken for histological examination, the strange matter of whether colour photographs were taken or not, the poor quality of black and white photographs, the story of a whiteboard wiped clear of a record of organ weights all testify to work which was performed in a cursory, perhaps hurried way.
He expressed the view that it was appropriate for Dr Manock to suggest a manner of death, but felt that scientific evidence concerning the validity of that view was insufficient. He stated that in his belief the Board should find:
[Statement of Claim 13.9]
… that the procedure by which Dr Manock conducted the autopsy was unsatisfactory according to the standards of 1994 ...
…
[Statement of Claim 13.11]
It would therefore be appropriate to reprimand Dr Manock and require that he now agree not to undertake any role in forensic pathology other than as an assistant to a qualified pathologist, and under that pathologist’s supervision.
On or about 21 December 2004, Professor Maddocks produced a further memorandum further explaining the views and conclusions which he had reached. I will not attempt to summarise the various matters which are canvassed in that further memorandum, but they go to various alleged failures on the part of Dr Manock as to his conduct of the post-mortem, his failure to consider alternative hypotheses, an alleged failure to offer to the court all of the evidence available to him, and the question whether Dr Manock’s interpretation of the manner of death was “fanciful” and unscientific.
In the memorandum he repeated the conclusion that the Board should find that the procedure by which Dr Manock conducted the autopsy “did not fulfil the standards expected of such an examination in 1994”.
After the completion of final submissions to the Board, on about 10 March 2005, another member of the Board, Professor McDonald, produced a memorandum setting out his own views and conclusions, during the course of which he stated:
I suggest that Ian Maddocks comments are exactly on the mark and I fully endorse them.
Professor McDonald goes into some particularity as to standards specified in various text books, from which he drew the conclusion that conduct of the autopsy in question “did not conform with contemporary standards”.
Finally, the other pathologist on the Board, Dr Coleman, produced a memorandum setting out his views and conclusions as at about 16 March 2005, after delivery of final submissions to the Board. He described the autopsy as sub-standard, and that the information recorded “… was deficient in detail and substance”. He went on to suggest that:
The conclusions drawn by Dr Manock, even if reasonable and even if correct went beyond the available evidence which did not appear to allow exclusion of alternative diagnoses and did not explore potential natural antecedents to drowning.
After expatiating further on the matter, he stated:
[Statement of Claim 18.15]
… I agree with Ian Maddocks’ conclusion that Dr Manock merits reprimand and exclusion from further independent function as a forensic pathologist. If one takes this view then the charge of unprofessional conduct is proven.
Despite the strength of the opinions expressed in those memoranda, and even allowing for the fact that clearly they were made during the course of the Board’s deliberations, on 22 June 2005, the Board unanimously determined that:
“Unprofessional conduct on … [Dr Manock’s] part has not been established and the complaint must be dismissed with costs.
In the statement of claim Mr Keogh alleges that in reaching a conclusion which was totally at odds with the expressed view of the majority of the members, albeit expressed during the course of deliberations, the Board must be taken to have acted in bad faith, or taken into account some new and undisclosed matter upon which Mr Keogh had not been advised, or acted so unreasonably that on that account alone the decision should be quashed.
Mr Swan for Dr Manock contended that opinions expressed in the various memoranda were only preliminary views and clearly the Board considered all matters further. He submitted that there was no reason to think that they had not reached the eventual decision to which they came, in good faith.
However, the case is unusual given the strength of the opinions asserted by the three members of the Board with qualifications in pathology.
In my view, the matters pleaded in the relevant paragraphs of the statement of claim relating to this issue are arguable.
Is there any reason why judicial review would be refused?
This question may be disposed of shortly.
While it must be accepted that the grant of relief on an application for judicial review is discretionary, counsel have not identified at this stage of the proceedings any matter which cold properly lead to the exercise of the discretion against the plaintiff.
My view as to this aspect of the matter does not, of course, bind the trial judge who will be entitled to address the question with the benefit of a full examination of all issues.
Extension of time
The matters pleaded with respect to the memoranda to which I have referred, generated by three members of the Board, did not come into the possession of Mr Keogh’s advisers until 21 March 2006 during the course of the proceedings before me.
Ordinarily, under the old rules, Mr Keogh could have amended his pleading without leave, but on 4 May 2006 I made an order suspending the operation of SCR r 53.01, so that an amendment to the pleadings without an order supporting the amendment was no longer possible.
Under the old rules,[7] a summons seeking judicial review must be issued within six months from the date when the grounds for the review first arose (SCR r 98.06).
[7] And also under the new rules: see r 200(2).
In par 42 of the proposed amended statement of claim, Mr Keogh seeks, to the extent necessary, an order for an extension of time pursuant to both SCR r 3.04(d) and/or s 48 of the Limitation of Actions Act 1936 with respect to those parts of the pleadings which might arguably be said to give rise to additional causes of action arising outside of the six months period, based on the memoranda or the implications to be drawn from them.
I am of the view that that is a matter best left to the trial judge. The statement of claim can stand and that issue may be determined by the trial judge.
Security for costs
Dr Manock made a belated application for an order that:
… the plaintiff be required to provide security for costs with respect to a prospective hearing of the action.
and that the order be made:
… prior to the plaintiff being granted leave to serve any amended summons or statement of claim.
The application was filed outside of the time which I had set for further applications to be made in the matter, but I do not determine the fate of it on that score.
The application for security for costs is supported by an affidavit sworn by Ms Anna Williamson, a member of the firm of solicitors on the record for Dr Manock.
She asserts that with respect to an order for costs made in favour of Dr Manock on 27 January 2006, Mr Keogh owes costs with respect to the proceedings before the Board in the sum of $55,000, and has, through his solicitors, declined to pay it.
The application for security is said to be brought pursuant to rule SCR r 98.05 and SCR r 100.01.
SCR r 98.05 relates to powers of the court on application for directions in an action for judicial review. The powers conferred by the rule include a power to grant leave to serve the proceedings “… subject to such terms as to costs and security as it thinks fit”.
There is an obvious difficulty in applying that rule. The orders granting leave to serve the proceedings have already been made. In any event, as I have indicated, I will direct that the action proceed under the new rules, which do not contain a similar provision.
SCR r 100.01 confers a general jurisdiction to order security for costs in any proceedings.
In pursuing the application for security for costs, Dr Manock attempted to equate the position of Mr Keogh with that of a plaintiff “ordinarily resident out of the State” within the meaning of SCR r 100.01(b). In my view, the analogy is inapt.
The Court does not often order an impecunious plaintiff to pay security for costs, at least in circumstances where it cannot be said that the action is without reasonable prospects of success.
If the determination of the Board is quashed, the costs order made by the Board will fall.
An additional consideration in this case is the public interest in ensuring that complaints against medical practitioners made under the Medical Practitioners Act 1983 are dealt with properly, and that in cases where unprofessional conduct has been proved, appropriate disciplinary orders are made.
The impecuniosity of Mr Keogh is assumed and asserted by Dr Manock in making the application.
In all the circumstances, I would dismiss the application for security for costs.
Conclusions
Given that this matter is now proceeding under the new rules, I will order pursuant to r 200(1) and r 200(4) that the plaintiff have permission to proceed with the action.
The plaintiff will also have leave to file and serve the amended statement of claim, but deleting therefrom the allegations as to so-called “similar fact” evidence and stripping the statement of claim of the annexures. To attach lengthy annexures, being evidentiary documents, to the statement of claim is not in accordance with the pleading rules. If it necessary to do so, brief statements of relevant facts drawn from the annexures may be pleaded in the body of the statement of claim.
There is a plethora of affidavit material on file. Commonly, applications for judicial review proceed on affidavits, but this action is now proceeding on pleadings.
The plaintiff seeks an order that the action be heard by the Full Court. I do not think that that is appropriate. The case has the potential to generate a lengthy trial, focussing on a number of factual and evidentiary issues.
Pursuant to r 200(5), I will order that the action be heard by the court constituted of a single judge. The fact that the action is proceeding on pleadings does not mean that affidavits may not be used. Indeed, ordinarily an action for judicial review proceeds on the basis of the record of the proceedings, including the transcript of evidence given before the tribunal with respect to which the application is brought, and no more. It is only in limited circumstances that in a case such as this, the record of the proceedings below may be augmented by further evidentiary material.
As I have said, the full file of the Board has been brought into court. Whether the relevant material is exhibited to affidavits or whether it can be simply included in an agreed book of documents is a matter for directions, either by a Master or by the trial judge in due course. The trial judge will have control of what further, if any, evidence may be led at the trial.
I will direct that the second defendant file a defence within 21 days of receipt of the amended statement of claim.
In the circumstances, I will refer the matter to a Master to scrutinise the amended statement of claim after it has been revised in accordance with my reasons, and subject to that, it may then be filed and served.
The formal orders are:
1.That the applications to set aside the orders giving leave to serve the amended inter partes summons and statement of claim, in the alternative to strike out the summons and statement of claim, and in the further alternative to strike out certain paragraphs of the summons and statements of claim (FDN 8) be dismissed.
2.That the application for security for costs (FDN 17) be dismissed.
3.That pursuant to the Supreme Court Rules 2006, s 8(2)(b) (“the new rules”), in lieu of the Supreme Court Rules 1987 the new rules will hereafter apply to the proceedings.
4.That pursuant to r 200(1) and r 200(4) of the new rules, permission is granted for the plaintiff to proceed with the action.
5.That the action proceed on pleadings.
6.That the proposed amended statement of claim be redrafted to comply with the reasons for ruling published this day, and that the redraft be referred to a Master to confirm that it does so comply, whereupon it be filed and served.
7.That the second defendant file and serve his defence within 21 days of service of the amended statement of claim.
8.That the action be heard by the Court constituted of a single judge.