FIL LEVERAGED US GOVERNMENT BOND FUND LTD. AND OTHERS v. THE TCW GROUP INC. AND ANOTHER

FIL LEVERAGED US GOVERNMENT BOND FUND LTD. AND OTHERS v. THE TCW GROUP INC. AND ANOTHER

Leave to amend was refused because the fraudulent misrepresentation claim was not pleaded with the required particularity; use of broad 'core' representations and cross‑references such as 'consistent with and/or implicit in' rendered the fraud case a moving target and prevented the defendants from adequately meeting the allegations, which alone justified refusal.

Citation
FIL LEVERAGED US GOVERNMENT BOND FUND LTD. AND OTHERS v. THE TCW GROUP INC. AND ANOTHER
Parties
1st Plaintiff: FIL LEVERAGED US GOVERNMENT BOND FUND LIMITED; 2nd Plaintiff: MBS CAPITAL SECURED LIMITED; 3rd Plaintiff: MBS SECURITIES LIMITED; 4th Plaintiff: FIRST INVESTMENTS LIMITED; 5th Plaintiff: FIL INVESTMENT SERVICES LIMITED; 1st Defendant: THE TCW GROUP INC.; 2nd Defendant: TCW FUNDS MANAGEMENT, INC.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 December 1999
Case Number
HCCL231/1998
Procedural Posture
Commercial Action (court of First Instance, Commercial Action No.231 of 1999) / Hearing of Application for Leave to Amend and Defendants' Strike Out Summons
Outcome
Plaintiffs' application for leave to amend refused; original Statement of Claim struck out; plaintiffs granted leave to renew within 42 days; costs ordered to defendants in any event
Legal Topics
Fraudulent Misrepresentation, Negligent Misrepresentation (abandoned), Breach of Contract, Breach of Fiduciary Duty, Strike Out, Leave to Amend, Particularity of Pleading, Forum Non Conveniens
Source Language
EN
Commercial Litigation Contract Tort Equity Civil Procedure Fraudulent Misrepresentation Negligent Misrepresentation (abandoned) Breach of Contract +5 more

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Parties

FIL LEVERAGED US GOVERNMENT BOND FUND LIMITED

1st Plaintiff

MBS CAPITAL SECURED LIMITED

2nd Plaintiff

MBS SECURITIES LIMITED

3rd Plaintiff

FIRST INVESTMENTS LIMITED

4th Plaintiff

FIL INVESTMENT SERVICES LIMITED

5th Plaintiff

THE TCW GROUP INC.

1st Defendant

TCW FUNDS MANAGEMENT, INC.

2nd Defendant

Procedural Posture

Commercial Action (court of First Instance, Commercial Action No.231 of 1999) / Hearing of Application for Leave to Amend and Defendants' Strike Out Summons

Legal Issues

  1. 1 Whether leave to amend should be granted in terms of the proposed Amended Statement of Claim
  2. 2 Whether the fraudulent misrepresentation claim is pleaded with requisite particularity
  3. 3 Whether the amended pleading is an abuse of process or embarrassing/defective such as to justify refusal to amend

Ratio Decidendi

Leave to amend was refused because the fraudulent misrepresentation claim was not pleaded with the required particularity; use of broad 'core' representations and cross‑references such as 'consistent with and/or implicit in' rendered the fraud case a moving target and prevented the defendants from adequately meeting the allegations, which alone justified refusal.

Court Disposition

Plaintiffs' application for leave to amend refused; original Statement of Claim struck out; plaintiffs granted leave to renew within 42 days; costs ordered to defendants in any event

Orders

  • On plaintiffs' summons dated 10 November 1999: application for leave to amend in terms of the proposed Amended Statement of Claim is refused
  • On plaintiffs' summons dated 10 November 1999: plaintiffs have leave to renew the application for leave to amend within 42 days from the date of judgment