Marks v Australaw
[2024] VSC 434
•25 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST
S ECI 2024 00476
BETWEEN:
| ANTON BLAISE MARKS | Plaintiff |
| v | |
| AUSTRALAW PTY LTD (ACN 167 783 708) TRADING AS KELSO LAWYERS | Defendant |
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| JUDGE | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 July 2024 |
DATE OF RULING: | 25 July 2024 |
CASE MAY BE CITED AS: | Marks v Australaw |
MEDIUM NEUTRAL CITATION: | [2024] VSC 434 |
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PRACTICE AND PROCEDURE – Whether the plaintiff’s amended statement of claim ought to be struck out or dismissed – Whether the plaintiff has pleaded a lost opportunity – Vague, embarrassing and prolix pleadings – Supreme Court (General Civil Procedure) Rules 2015 rr 22.16, 23.02 – Hoh v Frosthollow Pty Ltd [2014] VSC 77 – Embarrassing pleadings struck out.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Rightside Legal | |
| For the Defendant | Mr B Petrie of counsel | K&L Gates |
TABLE OF CONTENTS
Background......................................................................................................................................... 1
The underlying proceeding......................................................................................................... 1
The present proceeding................................................................................................................ 4
Applicable Principles........................................................................................................................ 5
Submissions........................................................................................................................................ 8
Defendant’s submissions............................................................................................................. 8
Plaintiff’s submissions................................................................................................................ 10
Analysis.............................................................................................................................................. 10
Costs.................................................................................................................................................... 13
Conclusion......................................................................................................................................... 14
HER HONOUR
The plaintiff alleges his former lawyers were negligent when they advised him to settle an institutional abuse claim against the State of Victoria (‘State’). John Coogan (‘Coogan’), a teacher, sexually abused the plaintiff at a State school. Coogan was a Christian Brother. After ceasing employment at the school, the plaintiff says that Coogan continued to abuse him. This ruling concerns an application by the defendant law firm. It applies for summary dismissal for the part of the plaintiff’s negligence claim alleging he lost an opportunity to obtain judgment from the Christian Brothers.
Subsequent to the filing of the application, the plaintiff correctly conceded that claim could not be maintained in circumstances where the opportunity was not lost. The plaintiff then amended the statement of claim to allege the plaintiff’s claim had been ‘damaged and/or marginalised’ by the settlement with the State. This part of the pleading, together with some other embarrassing parts of the pleading, must be struck out. Reasons follow.
In support of the application, the defendant relies upon the affidavits of Samuel Glenn Rappensberg affirmed 14 May 2024 and 24 June 2024 (the ’Rappensberg 14 May 24 affidavit’ and the ‘Rappensberg 24 Jun 24 affidavit’ respectively).
The plaintiff opposes the application. He relies upon his amended statement of claim filed 3 July 2024 (‘ASOC’), the affidavit of Nicole Jospeh affirmed 9 July 2024 (the ‘Jospeh affidavit’) and the affidavit of Shea Rowell affirmed 11 July 2024 (the ‘Rowell affidavit’).
Both parties filed written submissions and made oral submissions at the hearing of the application.
Background
The underlying proceeding
The plaintiff was born in 1958. He commenced his secondary schooling at North Geelong High School (‘NGHS’) in 1971.
The plaintiff alleges that he was subject to sexual abuse by Coogan:[1]
(a) between 1971 and 1973, while Coogan was employed as a physical education teacher and sports coach by the State at NGHS (‘NGHS period’); and
(b) between a time in 1973/4 and in 1974, while Coogan was employed as a physical education teacher and sports coach by the Christian Brothers at St Joseph’s College (‘CB period’).[2]
[1]Amended Statement of Claim filed 3 July 2024 (‘ASOC’), [2].
[2]I note this period is refined in the plaintiff’s written submissions filed 8 July 2024 (‘plaintiff’s written submissions’) to a three month period in 1974, [8(b)].
In or around August 2017,[3] the plaintiff pleads he contacted, engaged and retained the defendant to act on his behalf in a claim of negligence against the State and the Christian Brothers in relation to the Coogan abuse.
[3]ASOC, [11] (I note the plaintiff’s written submissions state he engaged the defendant to act on his behalf in October 2017 at [13]).
On 10 October 2017, the defendant wrote to the plaintiff, stating:
It remains our intention to pursue the State of Victoria and the Trustees of the Christian Brothers; it is however dependent on your instructions, statement material and other evidence we come across which goes to liability.
In the event it doesn’t appear that we will be able to achieve a successful outcome in a claim against either defendant, you will be notified. [4]
[4]Exhibit “NJ-1” to the affidavit of Nicole Jospeh affirmed 9 July 2024 (‘Joseph affidavit’), 21.
On 5 June 2018, the plaintiff affirmed a victim impact statement in support of his claim.[5]
[5]Ibid, 9-20.
In June 2018, the defendant prepared a draft letter of demand addressed to Shane Wall, Executive Officer for Professional Standards of the Christian Brothers.[6]
[6]Exhibit “SR-1” to the affidavit of Shea Rowell affirmed 11 July 2024 (‘Rowell affidavit’), 4-7.
On 21 June 2018, the defendant wrote to Counsel, Richard Royle requesting advice as to the plaintiff’s claim in an email titled ‘Re: Your advice on possible Occupiers Liability case against Christian Brothers’. The defendant stated, inter alia, that the case against the Christian Brothers didn’t ‘look promising.’[7]
[7]Exhibit “NJ-1” to the Jospeh affidavit, 24.
On 3 October 2018, the plaintiff was assessed by forensic psychiatrist, Dr Josephine Sudin on the instruction of the defendant.[8]
[8]Ibid, 33-55.
On 3 October 2019, the defendant briefed Miguel Belmar of Counsel to appear at the ‘informal settlement conference’ on 31 October 2019.[9]
[9]Ibid, 31.
On 31 October 2019, the parties attended a mediation with the State.[10] On this date, the plaintiff signed a deed of release with the State, settling his claim for $250,000 inclusive of legal costs and disbursements and any statutory repayments (‘deed’). Clause 5.1 of the deed (the ‘indemnity clause’) stated:
[10]ASOC, [27].
5.1For the consideration set out in Clause 1, the Plaintiff indemnifies and agrees to keep the Defendant and/ or its servants and/ or agents indemnified against all claims, proceedings, suits, demands and other proceedings made or brought against the Defendant and/ or its servants and/ or agents and against all injury, damage, loss, cost, expense or liability which, but for this indemnity, the Defendant may suffer or may incur to another or others arising by reason of, arising out of, or in connection with:
(a)the facts or circumstances giving rise to the claim in the proceeding;
(b)all other facts and circumstances relating to the Plaintiff’s period of enrolment in the School including without limitation, the facts and circumstances alleged in the material constituting the Claim in Recital B;
(c)any other facts and circumstances that relate directly or indirectly to the Plaintiff’s period of enrolment at the School; and
(d)the subject matter of the negotiations relating to the settlement evidenced by this Deed.[11]
[11]Exhibit “SGR-1” to the affidavit of Samuel Glenn Rappensberg affirmed 14 May 2024 (‘Rappensberg 14 May 24 affidavit’), 9.
Pursuant to the deed, the plaintiff was required to issue proceedings in a Court against the State and consent to an order for judgment in the sum of $250,000.[12] The plaintiff did so, with the County Court making orders to this effect on 27 November 2019.[13]
[12]Exhibit “SGR-1” to the Rappensberg 14 May 24 affidavit, 8.
[13]Ibid, 16.
On 27 November 2019, the defendant wrote to the plaintiff regarding the merits of a claim against the Christian Brothers (‘the defendant’s 27 Nov 19 letter’). The defendant’s solicitor advised that they had spoken to a barrister at the beginning of the plaintiff’s claim against the State, who had shared their view ‘that there was no viable cause of action to pursue against the Christian Brothers.’[14] The defendant wrote that there was ‘also no evidence to suggest the Christian Brothers were on notice about Coogan (being an abuser) before or during his time at the school to support a negligence claim.’[15]
[14]Exhibit “NJ-1” to the Joseph affidavit, 32.
[15]Ibid, 32.
The present proceeding
On 6 February 2024, the plaintiff commenced this proceeding (‘present proceeding’) via writ and statement of claim (‘SOC’).
On 28 February 2024, the defendant filed a notice of appearance.
On 22 March 2024, the defendant wrote to the plaintiff advising they considered the SOC was liable to be struck out and the claim regarding the plaintiff's right of action against the Trustees of the Christian Brothers’ ought to be summarily dismissed. The defendant invited the plaintiff to replead his SOC, outlining ten examples of what it alleges was non-compliance with r 13.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’).[16]
[16]Exhibit “SGR-1” to the Rappensberg 14 May 24 affidavit, 17-22.
On 28 March 2024, the plaintiff’s solicitor advised the defendant that they were obtaining full instructions and were agreeable to the defendant not filing a defence.[17]
[17]Ibid, 23.
On 16 May 2024, the defendant filed the summons subject to the application.
On 11 June 2024, the plaintiff provided the proposed ASOC to the defendant.[18] The ASOC was filed on 3 July 2024.
[18]Exhibit “SGR-1” to the affidavit of Samuel Glenn Rappensberg affirmed 24 June 2024 (‘Rappensberg 24 Jun 24 affidavit’), 5.
On 8 July 2024, the plaintiff wrote to the defendant advising that they considered the application would fail and proposing further amendments to paragraph 41 of the ASOC. The letter stated in part:
The Plaintiff’s claim against the CBs has no prospect of succeeding on liability and is worth close to nothing in terms of damages. As a result of the Defendant’s negligence (in relation to the indemnity in the deed) the claim (if it could be made) is rendered worthless. [19]
[19]Exhibit “NJ-1” to the Jospeh affidavit, 56-58.
On 17 July 2024, I heard the defendant’s application.
Applicable Principles
The summary dismissal application relies on ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) and rr 22.16 and 23.01 of the Rules. The principles are well-established and not in dispute.[20]
[20]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, [35].
With respect to the strike out application, I adopt the principles given by Derham AsJ in Hoh v Frosthollow Pty Ltd:[21]
[21][2014] VSC 77, [11]-[21] (‘Hoh v Frosthollow’).
11. Rule 23.02 of the Rules provides:
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
12. Under this Rule, the objection is to the manner of expression of the claim or defence in the indorsement of claim or pleading. That is, the indorsement or pleading does not disclose the cause of action or defence or its contents are such that it is scandalous, frivolous or vexatious, or may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process. Under this Rule, the defendants do not ask that the proceeding be brought to an end. They seek an order that the offending indorsement be struck out or amended, and that the plaintiff present the claim in the proper way: Brinson v Rocla Concrete Pipes Ltd.[22] The meanings of some of the terms are not immediately obvious to the modern eye. They are:
[22][1982] 2 NSWLR 937.
(a)Scandalous: Allegations made in a pleading for the purpose only of abusing or injuring the opposite party and allegations which are indecent or offensive are scandalous within the meaning of the rule, and liable to be struck out: Christie v Christie;[23] Coyle v Cuming;[24] Cashin v Craddock.[25]
[23](1873) LR 8 Ch App 499.
[24](1879) 40 LT 455.
[25](1876) 3 Ch D 376. See Williams, Civil Procedure Victoria, 23.02.30.
(b)Frivolous or vexatious: These words in combination have traditionally been used to describe a wide variety of circumstances in which a claim is found to be groundless, or lacking a legal basis or merit
(c)Prejudice, embarrass or delay: In general, a pleading or indorsement is embarrassing when it places the opposite party in the position that he or she does not know what is alleged against him or her: Girando v Padbury;[26] Meckiff v Simpson;[27] Gunns Ltd v Marr.[28] Thus, a pleading which is unintelligible (Hoffnung v Fletcher),[29] or is vague or ambiguous (Byrd v Nunn),[30] or is too general (British & Colonial Land Assn Ltd v Foster)[31] is embarrassing.[32]
[26](1919) 22 WALR 7.
[27][1968] VR 62, 70.
[28][2005] VSC 251, [15].
[29](1887) 4 WN (NSW) 68.
[30](1877) 7 Ch D 284.
[31](1888) 4 TLR 574.
[32]See Williams, Civil Procedure Victoria, 23.02.35.
13.In Wheelahan v City of Casey (No 12),[33] Dixon J set out the essential principles derived from three decisions of this court, SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd (No 2),[34] Environinvest Ltd v Pescott; Environinvest Ltd v Blackburne Pty Ltd,[35] and Clarke v Great Southern Finance Pty Ltd,[36] as follows:[37]
[33][2012] VSC 316, [25].
[34][2011] VSC 492.
[35][2011] VSC 325.
[36][2010] VSC 473.
[37](Citations omitted).
(a)the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;
(b)the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression “material facts” is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;
(c)as a corollary, the pleading must be presented in an intelligible form — it must not be vague or ambiguous or inconsistent. Thus a pleading is “embarrassing” within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;
(d)the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;
(e)pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 (Vic);
(f)a pleading which contains unnecessary or irrelevant allegations may be embarrassing — for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;
(g)it is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;
(h)every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));
(i)the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or the conversation must not be pleaded unless the words are themselves material (r 13.03);
(j)particulars are not intended to fill gaps in a deficient pleading. Rather, they are intended to meet a separate requirement — namely, to fill in the picture of the plaintiff’s cause of action (or defendant’s defence) with information sufficiently detailed to put the other party on guard as to the case that must be met.30 An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried;
(k)a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;
(l)extensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible;
(m)in an application under r 23.02, the court will only look at the pleading itself and the documents referred to in the pleading;
(n)the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown;
(o)if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading; and
(p)Rule 13.10, which requires a pleading to contain the necessary particulars of any fact or matter pleaded.
Submissions
Defendant’s submissions
In respect of the summary dismissal, the plaintiff has not ‘lost’ the opportunity to pursue a claim against the Christian Brothers, noting a limitation period for the plaintiff bringing an action against the Christian Brothers does not exist.[38] It would therefore be an abuse of process to allow the plaintiff to continue his claim against the defendant to ‘subsidise the value’ of his claim against the Christian Brothers.[39] This issue is not remedied by the ASOC.
[38]Limitations of Actions Act 1958 (Vic) s 27P.
[39]Defendant’s written submissions filed 24 June 2024 (‘defendant’s written submissions’), [3].
To expand on this argument, the deed released the State from liability in respect of the plaintiff’s abuse in the NGHS period, with the plaintiff agreeing to indemnify the State for all future claims in relation to the NGHS period. It is uncontroversial that this deed does not release the Christian Brothers from liability.
Whether the plaintiff has lost the opportunity to pursue a claim against the Christian Brothers is a binary question. It is not relevant that any proposed claim against the Christian Brothers may be difficult. Further, the defendant is not responsible for the difficulties associated with the claim.
Should the Court permit the plaintiff to pursue a claim against the defendant as opposed to pursuing his existing claim against the Christian Brothers, this ‘could potentially open the floodgates to parties seeking to choose the “easy” path of litigating a hypothetical claim, rather than litigating an actual claim that remains available to be pursued.’[40]
[40]Defendant’s written submissions, [25].
With respect to the ASOC, the amendments have not remedied the fundamental issues with the claim; as such, the claim has no real prospect of success. Firstly, the plaintiff’s claim against the Christian Brothers has not been lost. Secondly, alleging that the plaintiff’s claim against the Christian Brothers has been ‘damaged’ or ‘marginalised’ is vague and lacking precision and should not be allowed to be advanced. Thirdly, the proposition that the plaintiff has ‘damaged’ or ‘marginalised’ his claim against the Christian Brothers due to indemnifying the State should be rejected as the deed solely relates to the NGHS period and therefore no question as to the State’s liability would arise. Fourthly, the NGHS period and the CB period are distinct and it could not be said that the Christian Brothers ought to have contributed to the damages for which the State were liable. Lastly, obtaining judgment against the defendant would allow the plaintiff the opportunity to still pursue a claim against the Christian Brothers, thereby obtaining a double recovery.
In the alternative, and in relation to the strike out application, the ASOC should be struck out for the following reasons:
(a) it fails to precisely state the issues and the defendant is unable to ascertain the causes of action and material facts;
(b) it contains a substantial amount of particulars that expand the issues in a way in which the defendant cannot respond;
(c) the issues regarding the claim against the Christian Brothers is so intertwined with the remainder of the pleadings that the entire ASOC must be struck out.
Plaintiff’s submissions
Although it is conceded that the plaintiff is not barred from issuing proceedings against the Christian Brothers, this claim is ‘only notional and in fact completely worthless.’[41] The plaintiff would not succeed in proving the liability of the Christian Brothers and even if he were to succeed, the claim is ‘worth close to zero in terms of damages’[42] in respect of both general damages and economic loss.
[41]Plaintiff’s written submissions, [4].
[42]Ibid, [3].
As a result of the negligence of the defendant, the plaintiff has signed a deed with the indemnity clause. In the event the plaintiff was to issue a claim against the Christian Brothers, it is likely the Christian Brothers would seek to join the State as a third party. It is otherwise impossible for the plaintiff to formulate a case against the Christian Brothers that does not relate to his ‘period of enrolment’ at NGHS, thereby enlivening the indemnity clause.
In considering PCB v Geelong College,[43] it is arguable that the State is liable for both the NGHS period and the CB period. This is an argument the defendant failed to pursue in the underlying proceeding by drawing an artificial line between the two abuse periods and an argument the Christian Brothers could rely on should the plaintiff issue a proceeding against them.
[43][2021] VSC 633.
Fundamentally, in the underlying proceeding, the defendant advised the plaintiff that his claim against the Christian Brothers had no merit. The defendant is now attempting to force the plaintiff to make a baseless claim which would likely result in him having to indemnify the State should this claim be successful.
Analysis
The plaintiff concedes that he could claim against the Christian Brothers and accordingly there is no basis to plea a loss of opportunity.
In light of the plaintiff’s concession on the loss of opportunity claim, it is unnecessary to make orders for summary dismissal of all claims made by the plaintiff in this proceeding regarding any lost opportunity to obtain judgment from the Christian Brothers. Related pleadings are embarrassing and, as discussed below, I will strike out those parts of the claim. Although the plaintiff will be given an opportunity to cure pleading defects, I will not allow the amended pleading to include a loss of opportunity regarding the claim against the Christian Brothers, nor that the settlement ‘damaged and/or marginalised’ the same.
Despite the concession on the loss of opportunity claim, the plaintiff pleads that the claim against the Christian Brothers is damaged and/or marginalised. This must be struck out for the following reasons.
For a loss of opportunity claim to succeed, there must be some value as to the opportunity lost.[44]
[44]Sellars v Adelaide Petroleum ML (1994) 179 CLR 332 (‘Sellars’), 355; Talacko v Talacko [2021] HCA 15 (‘Talacko’), [43].
The plaintiff, in referencing the High Court in Talacko v Talacko[45] (‘Talacko’), submitted that the Court is required to make a ‘realistic and reasoned assessment’ in determining the level of loss[46] and should not be deterred because the value of the loss is difficult to assess.[47] The plaintiff cited the reference in Talacko to:
.. the existence of a loss is sufficiently shown by proving that the tort caused a permanent impairment of the value of the plaintiff's existing right. It is enough that the right is "something of value" and that its value is diminished or lost.[48] (citation omitted)
[45][2021] HCA 15.
[46]Ibid, [43].
[47]Ibid, [46].
[48]Ibid, [43].
So much is uncontroversial. However, the plaintiff has overlooked a fundamental principle - the lost opportunity must have some value that is not ‘negligible’.[49]
[49]See: Sellars, 355; Lindsay-Owen v HWL Ebsworth Lawyers [2023] NSWSC 68, [41].
The plaintiff does not plead that he had a viable claim against the Christian Brothers prior to the settlement deed. Indeed, the plaintiff agrees with the advice given in the defendant’s 27 Nov 19 letter that he does not have a viable claim.[50] Without that foundation, the plea is embarrassing. The defendant cannot answer what has been damaged and/or marginalised.
[50]Plaintiff’s written submissions, [23]-[27].
If the plaintiff had no viable claim against the Christian Brothers at the time of settlement, what was damaged or marginalised by the settlement deed? Suppose there was only a notional case against the Christian Brothers. How could the settlement have damaged or marginalised it to the extent that damages are now claimed in negligence against the defendant?
Perhaps in the alternative, as it was contrary to the written submissions, the plaintiff submitted at hearing that he had a ‘modest liability’ claim against the Christian Brothers in the underlying proceeding which has been thwarted by the indemnity clause and is now only notional. Further, that the defendant could have strengthened the liability claim by issuing against the Christian Brothers. This is not pleaded.
If the plaintiff alleges that the defendant is negligent for failing to advise him to issue proceedings against the Christian Brothers, he should clearly plead that. That is not squarely pleaded at the moment. There are allegations made about failing to serve a demand on the Christian Brothers at [15]-[16], and that there was a duty of care to pursue by negotiation or litigation a claim against the Christian Brothers at [21], that such a claim was available in [24](j), and in [39], that the defendant breached the duty of care in [21] by advising the plaintiff to settle for the settlement sum. In particulars (i), (m)(vii), (v), (y), (xx) to [39], there is a reference to alleged failures regarding the claim against the Christian Brothers, but they relate to the advice given to settle.
The references in the pleading to the claim against the Christian Brothers being damaged and/or marginalised will be struck out. Those references are: [30](h), [39](w) and (bbb), [41](c), and [43].
Paragraphs [21](n), [28], [35], [36], [37](a) [38], [39](n)(iv), [39](x)(i), [39](ee)(v), [39](uu), [42](c), [42](i)-(j) reference the ‘consequent injuries’ introducing uncertainty in what is being alleged. There are many defined terms in the pleading but not this. Is it referencing the injury in [5], or something else? Those paragraphs are embarrassing and will be struck out.
I will allow the plaintiff to re-plead. However, the plaintiff should not attempt by a pleading sidewind to claim a loss of opportunity having now correctly conceded that no such claim can be made. The damaged and/or marginalised pleadings discussed above appear to take elements of that claim without pleading that claim. These vague allegations should not be pressed.
The pleading is prolix. It should focus on the material facts. Particulars that stray beyond the material facts ought be revised in the further amended claim. For instance, the long list of authorities in [26].
At the end of the hearing, I gave my conclusion and indicated that written reasons would follow. I then heard the parties on costs.
Costs
The defendant submitted that costs should follow the event, at least on the strikeout application. Regarding the summary dismissal application: the ASOC was filed after the defendant had filed the current application, therefore the defendant should be entitled to their costs up until the filing of the ASOC, with the balance reserved. The defendant sought 75% of their costs, with 25% reserved.
The plaintiff submitted that costs should be in the cause given the defendant’s application was for the SOC to be struck out in its entirety. Further, the plaintiff was disadvantaged by not having access to his complete legal file from the defendant.
Costs should follow the event. I will make orders that the plaintiff pay the defendant’s costs of the strike out application. Whilst I did not strike out the entire claim, the defendant has succeeded in its key submissions and the plaintiff was on notice of them. As to the summary dismissal, the plaintiff should pay the defendant’s costs up until the filing of the ASOC. As stated above, I would have granted the application had the plaintiff not capitulated by the ASOC. The costs of the summary dismissal should otherwise be in the proceeding.
As to the plaintiff’s reference to not having access to his complete file: this is irrelevant to the determination of costs. The purpose of the costs order is compensatory.
Conclusion
Embarrassing parts of the ASOC will be struck out. Those paragraphs are identified above. The plaintiff will be allowed to re-plead save that the plaintiff will not be allowed to plea a loss of opportunity regarding the claim against the Christian Brothers, nor that the settlement ‘damaged and/or marginalised’ the same. I will make orders to this effect.
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