GOBIND MOHAN AND ANOTHER v. BRIAN SHANE MCELNEY AND OTHERS

GOBIND MOHAN AND ANOTHER v. BRIAN SHANE MCELNEY AND OTHERS

The court allowed the proposed amendments because the facts supporting the new allegations and the existing causes were substantially the same and inextricably entangled across the single indivisible flotation scheme, no substantial prejudice to defendants was shown, omissions could be addressed by particulars and nominal damages/vindication justified exercise of discretion to grant leave despite limitation expiry under Order 20 r.5(5).

Citation
GOBIND MOHAN AND ANOTHER v. BRIAN SHANE MCELNEY AND OTHERS
Parties
1st Plaintiff: Gobind Mohan aka Obi Mohan; 2nd Plaintiff: Detaram Sakhrani Mohan; 1st Defendant: Brian Shane McElney; 2nd Defendant: Johnson, Stokes & Master; 3rd Defendant: Peat, Marwick, Mitchell & Co.; 4th Defendant: The Hongkong & Shanghai Banking Corporation; 5th Defendant: Wardley Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 March 1983
Case Number
HCA4611/1978
Procedural Posture
Civil Professional Negligence (company Flotation/prospectus) / Application for Leave to Amend Statement of Claim Under Order 20 Rule 5 (chambers Hearing)
Outcome
Application to amend granted
Legal Topics
Amendment of Pleadings, Order 20 Rule 5(5), Limitation Period, Prospectus Disclosure Duties, Misrepresentation, Costs, Nominal Damages
Source Language
EN
Civil Procedure Professional Negligence Companies Law Securities Law Limitation Law Amendment of Pleadings Order 20 Rule 5(5) Limitation Period +4 more

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Parties

Gobind Mohan aka Obi Mohan

1st Plaintiff

Detaram Sakhrani Mohan

2nd Plaintiff

Brian Shane McElney

1st Defendant

Johnson, Stokes & Master

2nd Defendant

Peat, Marwick, Mitchell & Co.

3rd Defendant

The Hongkong & Shanghai Banking Corporation

4th Defendant

Wardley Limited

5th Defendant

Procedural Posture

Civil Professional Negligence (company Flotation/prospectus) / Application for Leave to Amend Statement of Claim Under Order 20 Rule 5 (chambers Hearing)

Legal Issues

  1. 1 Whether proposed amendments introduce new causes of action and if so whether leave to amend may be granted after limitation expired under Order 20 r.5(5)
  2. 2 Whether facts supporting new causes are the same or substantially the same as existing causes
  3. 3 Whether defendants suffer substantial prejudice by allowing amendments

Ratio Decidendi

The court allowed the proposed amendments because the facts supporting the new allegations and the existing causes were substantially the same and inextricably entangled across the single indivisible flotation scheme, no substantial prejudice to defendants was shown, omissions could be addressed by particulars and nominal damages/vindication justified exercise of discretion to grant leave despite limitation expiry under Order 20 r.5(5).

Court Disposition

Application to amend granted

Orders

  • Proposed amendments in Particulars B, C and D of paragraph 35 and related particulars in the Amended Statement of Claim are allowed
  • Costs of this application: three-quarters awarded to the 1st and 2nd defendants and the 5th defendant and one-quarter against them in favour of the plaintiffs (subject to submissions),