GOBIND MOHAN AND ANOTHER v. BRIAN SHANE MCELNEY AND OTHERS

GOBIND MOHAN AND ANOTHER v. BRIAN SHANE MCELNEY AND OTHERS

The pleadings were fatally general and the proposed particulars either introduced new allegations not open on the Statement of Claim or sought to sue for matters where any duty was owed to the company (MPIL) not the individual plaintiffs; a bare allegation of conflict of duty is insufficient without particular facts establishing the conflict and consequent breach; accordingly the court refused to allow particulars to be added to paragraph 32 and struck out paragraph 35 as incompetent and prejudicial.

Citation
GOBIND MOHAN AND ANOTHER v. BRIAN SHANE MCELNEY AND OTHERS
Parties
1st Plaintiff: Gobind Mohan; 2nd Plaintiff: Detaram Sakhrani Mohan; 1st Defendant: Brian Shane McElney; 2nd Defendant (a Firm): Johnson, Stokes & Master; 3rd Defendant (a Firm): Peat, Marwick, Mitchell & Co.; 4th Defendant: The Hongkong and Shanghai Banking Corporation; 5th Defendant: Wardley Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 October 1984
Case Number
HCA4611/1978
Procedural Posture
Civil Negligence (professional Negligence) / Pre Trial (ruling on Particulars and Application to Amend Pleadings)
Outcome
Application to add particulars to paragraph 32 refused; paragraph 35 struck out in its entirety.
Legal Topics
Particulars of Claim, Amendment of Pleadings, Solicitor's Duty, Conflict of Duties, Reduction of Capital, Standing of Shareholders to Sue for Company Advice
Source Language
EN
Civil Procedure Professional Negligence Conflict of Interest Company Law Evidence/limitations Particulars of Claim Amendment of Pleadings Solicitor's Duty +3 more

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Parties

Gobind Mohan

1st Plaintiff

Detaram Sakhrani Mohan

2nd Plaintiff

Brian Shane McElney

1st Defendant

Johnson, Stokes & Master

2nd Defendant (a Firm)

Peat, Marwick, Mitchell & Co.

3rd Defendant (a Firm)

The Hongkong and Shanghai Banking Corporation

4th Defendant

Wardley Limited

5th Defendant

Procedural Posture

Civil Negligence (professional Negligence) / Pre Trial (ruling on Particulars and Application to Amend Pleadings)

Legal Issues

  1. 1 Whether particulars sought to be added to paragraph 32 are open on the Statement of Claim
  2. 2 Whether alleged failures to advise (re reduction of capital/sale) give rise to personal causes of action when advice was to the company
  3. 3 Whether paragraph 35 sufficiently pleads a cause of action based on conflict of duty

Ratio Decidendi

The pleadings were fatally general and the proposed particulars either introduced new allegations not open on the Statement of Claim or sought to sue for matters where any duty was owed to the company (MPIL) not the individual plaintiffs; a bare allegation of conflict of duty is insufficient without particular facts establishing the conflict and consequent breach; accordingly the court refused to allow particulars to be added to paragraph 32 and struck out paragraph 35 as incompetent and prejudicial.

Court Disposition

Application to add particulars to paragraph 32 refused; paragraph 35 struck out in its entirety.

Orders

  • Paragraph 35 of the Statement of Claim struck out.
  • Application to add the proposed particulars to paragraph 32 refused.