McEwan v Mactaggart

The case of McEwan v Mactaggart involved the plaintiff seeking to amend her statement of claim after it was previously struck out. The plaintiff was granted leave to replead on the condition that she serve the defendants with an amended claim and statement of claim and, if the defendants did not consent to its filing, the plaintiff was to bring an application seeking leave to file. The plaintiff subsequently brought an application for leave to file an amended statement of claim. The defendants opposed the plaintiff's application and applied for a stay of the proceedings pursuant to r 16(g) UCPR. The plaintiff also indicated that she intended to use certain documents in her new statement of claim, which she could only have obtained through the disclosure process in other proceedings. The court was required to determine whether the plaintiff's new statement of claim complied with the pleading rules, whether leave should be granted to file the amended statement of claim, and whether there was a proceeding on foot which could be stayed. Additionally, the court needed to decide whether the plaintiff had breached the Harman undertaking by using documents obtained through the disclosure process in other proceedings.

The court found that the plaintiff's new statement of claim did not comply with the pleading rules as it did not plead that she suffered any loss or damage. The court held that the plaintiff had not provided any evidence of loss or damage and therefore the claim was not sufficiently particularised. The court also held that there was no proceeding on foot which could be stayed as the previous claim and statement of claim had been struck out. The court further held that the plaintiff had breached the Harman undertaking by using documents obtained through the disclosure process in other proceedings. The court found that the plaintiff had not taken reasonable steps to obtain the documents from the defendants and had instead relied on the disclosure process in other proceedings. The court held that this was a breach of the Harman undertaking and that the plaintiff was not entitled to use the documents in her new statement of claim.

The plaintiff's application to file a new claim and statement of claim was dismissed. The defendants' applications were also dismissed. The court will hear the parties on costs. This case highlights the importance of complying with pleading rules and the Harman undertaking in civil proceedings. The court emphasised the need for parties to provide particularised claims and to take reasonable steps to obtain documents from the other party rather than relying on disclosure in other proceedings. The court also emphasised the importance of ensuring that there is a proceeding on foot which can be stayed before applying for a stay of proceedings.

No further orders.