RED STAG TIMBER LTD v JUKEN NZ LTD [2023] NZHC 2947

RED STAG TIMBER LTD v JUKEN NZ LTD [2023] NZHC 2947 [20 October 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-002753[2023] NZHC 2947BETWEEN RED STAG TIMBER LIMITEDPlaintiffAND JUKEN NEW ZEALAND LIMITEDDefendantHearing: 16 October 2023Appearances: N Flanagan and E Watt for PlaintiffA R Galbraith KC, C Bryant and G Luen for DefendantJudgment: 20 October 2023JUDGMENT OF VENNING JThis judgment was delivered by me on 20 October 2023 at 2.30 pm, pursuant to Rule 11.5 of the HighCourt Rules.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandHesketh Henry, AucklandCounsel: A R Galbraith KC, AucklandIntroduction[1] Juken New Zealand Limited (JNL) applies for orders:(a) striking out Red Stag Timber Limited's (Red Stag) seventh amendedstatement of claim (7ASOC), in whole or in part, for non-compliance;(b) striking out those parts of the 7ASOC which are time barred;(c) indemnity or increased costs; and(d) if required, leave to file the application after the close of pleadings.[2] Red Stag opposes the applications. It also seeks indemnity costs.[3] This is not the first time the Court has been asked to review Red Stag'spleadings in light of the Court of Appeal judgment which ultimately made orders:1[76] [s]triking out those parts of the fourth amended statement of claimthat seek relief in respect of representations and/or conduct by JNL prior toDecember 2012 and all claims (or any part thereof) based or relying on suchallegations.[4] Within days of delivery of that decision, Red Stag filed its 5ASOC. It thensubsequently filed its 6ASOC, together with an application for leave, which the Courtand the parties used as a vehicle to determine whether the proposed amended pleadingcomplied with the directions of the Court of Appeal.[5] This Court held the 6ASOC did not comply,2 and dismissed Red Stag'sapplication for leave to file the amended statement of claim in the form of the 6ASOC.However, this Court went on to grant leave to Red Stag in the following terms:3[46] Leave is granted to Red Stag to file an amended statement of claim oncondition that amended statement of claim is not to refer to and/or rely on thepre-December 2012 conduct of JNL to support any claim for loss, includingany loss claimed to have arisen after December 2012. Any losses claimedafter December 2012 are to be based solely on conduct after December 2012.1 Juken New Zealand Ltd v Red Stag Timber Ltd [2023] NZCA 242.2 Red Stag Timber Ltd v Juken NZ Ltd [2023] NZHC 1979.3 Red Stag Timber Ltd v Juken NZ Ltd, above n 2.Red Stag may, however plead JNL's conduct prior to December 2012 asbackground.[6] In response, Red Stag has filed the 7ASOC. JNL considers the 7ASOC stilldoes not comply with the judgment of the Court of Appeal and subsequent decision ofthis Court and for that reason pursues the above orders.Background[7] The factual background is well known to the parties. It is set out fully in thedecision of the Court of Appeal and in summary form in the judgment of this Court onthe application for leave to file the amended pleadings. It is unnecessary to repeat iton this application.JNL's position[8] JNL says the 7ASOC does not comply with either the Court of Appealjudgment or the judgment of this Court on the leave to file the amended pleadingsbecause, inter alia:(a) it maintains a claim for relief in respect of representations whichinclude conduct in the period prior to December 2012;(b) it relies in part on its interpretation of treatment requirements prior toDecember 2012;(c) the claim for representations in the period prior to December 2012underpins Red Stag's quantum claim;(d) Red Stag's claim for damages as confirmed in the brief of evidence ofJames Mellsop is based on the counterfactual that JNL could not haveentered the market in 2007 if it had not made the representations;(e) Red Stag's claim for relief based on JNL's failure to make "correctivedisclosure", appears to be based on JNL's conduct prior to December2012;(f) to the extent Red Stag seeks declaratory relief relating to pre-December2012 conduct Red Stag's claim for declaratory relief was struck out bythe Court of Appeal and cannot be maintained;(g) background or contextual facts should only be pleaded if it is notpossible to understand the critical allegations without them. Thematters pleaded by Red Stag as background are contentious and are notrelevant to the claim.[9] JNL next says that Red Stag's allegation in relation to the obligation to make"corrective disclosure" was first raised in the 7ASOC and is time barred as is RedStag's allegation at para 39 that, after December 2012 J-Frame did not comply withthe relevant standard because it did not have (inter alia) complete sapwood penetration.That allegation was first made in the 5ASOC.Red Stag's position[10] Red Stag opposes the applications. It says that the 7ASOC complies with theCourt of Appeal's judgment and the subsequent judgment of this Court. It says thisCourt's judgment allowed Red Stag to plead JNL's conduct prior to 2012 asbackground or for the purposes of seeking a declaration and no parts of the 7ASOCare time barred pursuant to s 43A of the Fair Trading Act 1986 such that they shouldbe struck out.[11] Red Stag says the allegations relating to "corrective disclosure" and completesapwood penetration are not based on representations and conduct that occurred before2012 and do not constitute fresh causes of action.[12] Red Stag also takes the point that leave was required for JNL's application asa separate step prior to it being made and no such application was made.Procedural issues[13] Red Stag's claim against JNL has been on foot in one form or another sinceNovember 2017. The proceeding has a 10 week trial scheduled to commence inFebruary 2024. At present, Red Stag has an application for leave to appeal the Courtof Appeal decision before the Supreme Court for decision. The parties accept that ifthe Supreme Court grants leave then the fixture for February 2024 will have to bevacated.[14] In the meantime the parties and this Court must continue on the basis the fixturein February 2024 will proceed. There are outstanding interlocutory applications whichthe Court has allocated a fixture for on 9 November 2023.[15] Despite the impending fixture in February the pleadings are not yet settled andJNL is yet to exchange its evidence. It is in both parties' interests for there to becertainty around the pleadings to enable the parties to conclude their preparation forthe trial in February. To that end and bearing in mind the aspirational objective of therules is the just, speedy and inexpensive determination of the proceeding (regrettablythe last two objectives at least are not often achieved) to the extent leave is requiredfor JNL to bring the application leave is granted.[16] On my review of the pleadings there are three issues that require to bedetermined in relation to JNL's challenge to the 7ASOC. They are:(a) whether Red Stag may maintain its application for declarationsregarding JNL's conduct pre-December 2012;(b) whether the pleading as to "corrective disclosure" and completesapwood penetration are statute barred; and(c) whether aspects of Red Stag's pleadings go beyond background and/orcontextual pleading and offend the general rules for pleading.The declaration issue[17] At para 56 of the 7ASOC Red Stag pleads:As set out in Column C of Schedule 1, the Promotional Representations andIdentification Representations (together, the Representations, which are reliedupon prior to December 2012 only for background, including the fact of theirbeing made, and for the purposes of seeking the declarations pleaded) werefalse because at the relevant times:[18] Mr Galbraith KC submitted that it was not open to Red Stag to include apleading seeking a declaration regarding the pre-December 2012 conduct by JNL.Such relief had been excluded by the Court of Appeal judgment.[19] Mr Flanagan submitted that the declarations were sought under the inherentjurisdiction of the Court and, if necessary, under the Declaratory Judgments Act 1908.As confirmed by the decision of Chambers J in Telecom Corp of New Zealand vCommerce Commission such declarations were not statute barred.4 Further, he reliedon the judgment of this Court as leaving the matter open for determination at trial.[20] In its decision on the previous application for leave, this Court noted:5[17] The issue of the declarations and other challenges can bedetermined at trial.but later went on to say:[44] For present purposes and absent further detailed argument on the pointI leave open the issue of whether Red Stag can pursue the declarations sought.What Red Stag cannot do however, is claim for losses occurring afterDecember 2012 that are based on representations and conduct that occurredbefore December 2012.[21] To the extent that this Court's decision on the matter has muddied the water onthis issue that is regrettable. However, I do note that the focus of the hearing beforethe Court at that time was understandably on Red Stag's claim for financial loss andcompensation for pre-December 2012 conduct. At [40]–[42] for example, the focuswas on the losses Red Stag was claiming. Earlier, this Court had dealt with theTelecom case in the following way which confirms the focus was on the losses claimedby Red Stag:6[38] The Telecom case relied on by Mr Flanagan does not assist Red Stag.That aspect of the case primarily involved consideration of whether a4 Telecom Corp of New Zealand v Commerce Commission [2012] NZCA 278.5 Red Stag Timber Ltd v Juken NZ Ltd, above n 2.6 Red Stag Timber Ltd v Juken NZ Ltd, above n 2.declaration could be available. In his decision Chambers J made it clear thata declaration could, in some circumstances, be available in the inherentjurisdiction of the Court. But relevantly, at an early stage Chambers J hadnoted the claim for damages was not available as the Commissionacknowledged it could seek penalties only with respect to conduct within thelast three years because of the limitation provision in s 80(5) of the CommerceAct 1986.[22] However, the issue of whether Red Stag may seek, by way of relief, adeclaration that JNL's conduct pre-December 2012 breached the Fair Trading Act 1986(FTA) is now directly before this Court. For the reasons given above I consider it isnecessary to deal with it in order to clarify and settle the pleading issue.[23] As noted, Mr Flanagan accepted that the declarations were sought in theinherent jurisdiction of the Court (and possibly under the Declaratory Judgments Act).That was a proper concession as the declarations sought do not comfortably fit withinthe type of declarations that the Court can make under s 43(3) of the FTA, nor can RedStag itself apply for the type of declarations that the Commission could apply for unders 46I of the FTA. If the declarations were sought under s 43(3) they would, in anyevent, be statute barred in relation to pre-December 2012 conduct: s 43A.[24] Of course I accept the force of Chambers J's reasoning in the Telecom case inwhich His Honour confirmed that, in the exercise of its inherent jurisdiction, the Courtcould make a declaration notwithstanding that a statutory basis for declaration may bebarred by limitation provisions. However, there is an important distinguishing featureof that case which is absent from the present. It is, that in the Telecom case, asChambers J noted, the declarations were sought by the Commerce Commission in thepublic interest.7[25] Further, in X and Y v Chief Executive of Oranga Tamariki,8 the Court of Appeal,while accepting that the discretion to grant declaratory relief is not generally timebarred, noted that where a corresponding claim for compensation cannot proceed, thereasons barring the compensation claim can be important considerations whenassessing whether a claim for declaration should proceed or whether relief should begranted. It also confirmed the Courts will be slow to permit such claims.7 Telecom Corp of New Zealand v Commerce Commission, above n 4, at [321].8 X and Y v Chief Executive of Oranga Tamariki [2023] 2 NZLR 261.[26] Despite what Red Stag may say, there is no public interest pursued in thepresent case. Red Stag is not a public regulatory authority. It is a commercialcompetitor of JNL. At the heart of Red Stag's claim is its claim for the losses causedto it by JNL's breaches of the FTA. The declarations sought very much form part ofthe relief claimed. They are the first step in the process of Red Stag's claim for itsloss. That is apparent from the form of the relief sought in the 7ASOC. For example,the claim for breach of s 9 of the FTA concludes:Accordingly, the plaintiff seeks:(a) A declaration that the conduct pleaded is conduct that constitutesor would constitute a contravention of section 9 of the [FTA].(b) An order pursuant to section 43(3)(f) directing that [JNL] pay to RedStag the amount of the Loss.(c) Interest.(d) Costs.[27] The loss claimed in (b) under s 43(3)(f) of the FTA is dependent on the finding,confirmed by the declaration, of a contravention of s 9 of the FTA. The declaration isintrinsically linked to the relief. It provides a springboard for the further relief claimunder s 43(3)(f) of loss. That format is repeated throughout the remaining causes ofaction.[28] Next, and in any event as Mr Galbraith submitted, whatever this Court said inits previous decision about the issue of declaration being determined at trial, (whichwill be the case for post-December 2012 conduct), this Court cannot override the effector impact of the Court of Appeal decision. The Court of Appeal said:9[72] In the absence of agreement, we consider the appropriate course is toallow the appeal on the basis of the relief claimed, albeit in a slightly modifiedform. Consistently with the reasoning set out above, we consider theappropriate form of relief is to strike out those parts of the amended statementof claim that seek relief in respect of representations and/or conduct by JNLprior to December 2012 and all claims (or any part thereof) based upon orrelying on such allegations.9 Juken New Zealand Ltd v Red Stag Timber Ltd, above n 1.[29] For the above reasons the current application for declarations form part of therelief sought by Red Stag and, as such, fall within the bar created by the Court ofAppeal decision.[30] The short point is that the effect of the Court of Appeal decision is that RedStag may not pursue, as part of its application for relief, declarations that JNL'sconduct pre-December 2012 was in breach of the FTA.[31] I have considered the impact of this decision on Red Stag, given the previousdecision of this Court, which had proposed the matter be left open. However, as noted,Red Stag currently has an application for leave before the Supreme Court. MrFlanagan and Ms Watt confirmed that the issue of the availability of declaratory reliefwas expressly raised in the application for leave. Ultimately the issue will bedetermined by that Court.[32] I conclude that Red Stag is prevented by the decision of the Court of Appealfrom pursuing a declaration (even under the inherent jurisdiction of the Court) forrepresentations or conduct by JNL prior to December 2012. Any pleading or claimseeking such declaratory relief prior to December 2012 is struck out.Fresh causes of action?[33] As noted, in its application JNL takes issue with para 39 of the 7ASOC andalso the inclusion of the "corrective disclosure" pleading.[34] The relevant principles as to when an amendment to a statement of claim mayconstitute a fresh cause of action were summarised in Transpower New ZealandLimited v Todd Energy Limited as follows:10[61] The relevant principles as to when a cause of action is fresh aresummarised in the Ophthalmological case at [22] - [24] as follows:(a) A cause of action is a factual situation the existence of whichentitles one person to obtain a legal remedy against another(Letang v Cooper);10 Transpower New Zealand Limited v Todd Energy Limited [2007] NZCA 302 at [61] (footnotesomitted).(b) Only material facts are taken into account and the selection ofthose facts "is made at the highest level of abstraction"(Paragon Finance plc v D B Thakerar & Co (a firm));(c) The test of whether an amended pleading is "fresh" is whetherit is something "essentially different" (Chilcott v Goss citingSmith v Wilkins & Davies Construction Co Ltd). Whetherthere is such a change is a question of degree. The change incharacter could be brought about by alterations in matters oflaw, or of fact, or both; and(d) A plaintiff will not be permitted, after the period of limitationshas run, to set up a new case "varying so substantially" fromthe previous pleadings that it would involve investigation offactual or legal matters, or both, "different from what havealready been raised and of which no fair warning has beengiven" (Chilcott at 273 noting that this test from Harris vRaggatt per Sholl J was adopted in Gabites v Australasian T& G Mutual Life Assurance Society Ltd).[35] The new paragraph inserted in the 5ASOC and repeated in the 7ASOC thatJNL takes issue with is:1139 In the alternative, and as further pleaded in Column B of Schedule 1,in order to comply with H1.2 for both Interior Framing and ExteriorFraming, LVL was and is required to have Complete SapwoodPenetration.[36] JNL argues that this new pleading amounts to a new, unheralded and freshcause of action. It submits that Red Stag has maintained, since commencing theproceeding on 17 November 2017, that after December 2012 LVL had to be treatedwith the glueline treatment to be labelled H1.2. It could have but did not amend itspleading previously. JNL submits that it should not be required, this close to trial, todeal with interlocutory matters that will arise out of the proposed amendment. JNLsuggests that the 5ASOC which first introduced para 39 failed to comply with theCourt of Appeal's order and was effectively an abuse. It should be treated as a nullity.[37] I do not accept the submission for JNL that the 5ASOC should be treated as anullity. It was open to Red Stag to file the 5ASOC prior to the close of pleading date.The fact that it did not address the Court of Appeal decision, which had only beendelivered a matter of days before that date, was addressed by the filing of the 6ASOC,11 LVL is a type of engineered wood product made from wood veneer peeled from a log and gluedtogether in layers.which became the subject of the application for leave. Red Stag's actions in relationto the 5ASOC fall well short of being an abuse of process so as to render it a nullity.[38] As to whether the pleading at para 39 introduces a fresh cause of action, thefirst point is that the causes of action and relief claimed remain unchanged. Theyremain based on breaches of the relevant provisions of the FTA. The relevant overallpleading is that from December 2012 JNL's LVL failed to comply with H1.2. As MrFlanagan submitted, the allegation raised in the paragraph in question is, as confirmedin the introductory words to the paragraph, an alternative to the pleading at para 38,namely as to the standards Red Stag says JNL's LVL was required to meet to complywith H1.2 from December 2012. Paragraph 39 sets out an alternative way JNL says itdid not comply. It is a further particular rather than an additional cause of action. Theunderlying claim is not essentially different. Nor can it be said to vary substantiallyfrom previous pleadings. It may require some further investigation of factual (andperhaps, some limited legal) matters but overall the issue will be whether JNL's LVLcomplied with the relevant standard from December 2012. The nature of the claimhas not changed.[39] In its application JNL also took issue with the "corrective disclosure" pleading.Mr Galbraith submitted that, if what was alleged was an obligation on behalf of JNLto make corrective disclosure after December 2012, it was illogical because Red Stag'sclaim was that from December 2012 JNL continued to make representations that itstimber complied with the standards which were false and in breach of the FTA. Onthe other hand, if it was suggested the "corrective disclosure" could effectively be readback so that from December 2012 and later there was an obligation to correctrepresentations made prior to December 2012 it offended and breached the previousruling of the Court of Appeal and was also contrary to authority.[40] The authorities Mr Galbraith relied on were the cases of Gosper v Re Licensing(NZ) Ltd, and Jalla v Shell International Trading and Shipping Co Ltd.12 In Gosper12 Gosper v Re Licensing (NZ) Ltd [1998] 3 NZLR 580; and Jalla v Shell International Trading andShipping Co Ltd [2023] UKSC 16.the Court of Appeal rejected the submission that the continuing effect of themisrepresentation in the valuation:13[w]hich had earlier occurred and became actionable can somehow beconverted into a further actionable wrong simply because its original falsity isnot corrected.[41] While the Court of Appeal in Gosper accepted the proposition that, in somecircumstances, silence can constitute misrepresentation or misleading conduct theCourt considered it had no application to that case.[42] Mr Galbraith also relied on the following passage from Jalla v ShellInternational Trading and Shipping Co Ltd in which the Supreme Court noted:14The second point is that it follows logically from the concept of a continuingcause of action that, if the limitation period is one of six years from the accrualof the cause of action, damages at common law for a continuing nuisancecannot be recovered for causes of action (i.e for past occurrences of thecontinuing nuisance) that accrued more than six years before the claim wascommenced: [43] Mr Flanagan confirmed that Red Stag accepts the validity of the abovepropositions. JNL relies on the following passage from the Court of Appeal decisionin the James Hardie Industries Plc v White case:15[100] Silence can, in certain contexts, amount to misrepresentation. Theissue is whether, in the particular circumstances of marketing and supply ofthese products, the fact of JHI's silence affirmatively conveyed a meaningwhich was misleading or deceptive. We accept that if the statements werethose of JHI, then a failure to correct untrue or misleading statements couldwell amount to conduct falling within s 9. Moreover, if JHI had lent itsreputation to the product claims (which it is arguable it had) it could beexpected to correct any misrepresentation. We therefore see no reason to differfrom the view of Peters J that this aspect of the FTA cause of action raises aserious issue to be tried.[44] Given that the claim for "corrective disclosure" must be limited to correctingrepresentations made after December 2012, ultimately the pleading for "correctivedisclosure" may add little to the claim as pleaded. Given the Court of Appeal decisionin this case, it cannot be applied to pursue a claim for conduct or representations prior13 Gosper v Re Licensing (NZ) Ltd, above n 12, at p 6.14 Jalla v Shell International Trading and Shipping Co Ltd, above n 12, at [32].15 James Hardie Industries Plc v White [2018] NZCA 580 (footnotes omitted).to December 2012. At most, it is, perhaps, a different way of challenging the ongoingrepresentations alleged from December 2012. As such it does not amount to a freshcause of action.[45] It follows that JNL's challenge to para 39 in the 7ASOC (and prior to that the5ASOC), including the related particulars in the schedule and the reference to"corrective disclosure" on the basis they raise fresh causes of action must bedismissed.Pleadings generally[46] Mr Galbraith referred the Court to a recent decision of the Court of Appeal ofEngland and Wales (Civil Division) in BB v Doha Bank Ltd.16 The Court noted anumber of propositions relevant to a submission the pleadings should be struck outbecause they were embarrassing (in the legal sense) and abusive:37. The particulars of claim is the means by which the claimant sets outthe facts on which they rely in order to establish the essential elementsof the cause of action, so that the defendant knows the case that theyhave to meet. It will be embarrassing if it contains irrelevant matters,and may be struck out in whole or in part for that reason alone. AsJames LJ in Davy v Garrett (1878) LR 7 Ch D 473 said, at 483:" if the Defendant is embarrassed by the Plaintiff'smode of stating his case he is entitled to be relieved from hisdifficulty. Now nothing is more embarrassing to a Defendantthan a number of statements which may be irrelevant, andwith which he therefore does not know what to do."38. In Tchenguiz v Grant Thornton LLP [2015] EWHC 405 (Comm); 1All ER (Comm) 961 Leggatt J (as he then was) said this at [1]:"Statements of case must be concise. They must plead onlymaterial facts, meaning those necessary for the purpose offormulating a cause of action or defence, and not backgroundfacts or evidence. Still less should they contain arguments,reasons or rhetoric. These basic rules were developed longago and have stood the test of time because they serve thevital purpose of identifying the matters which each party willneed to prove by evidence at trial."39. That summary of the basic principles of pleading was endorsed byMales J (as he then was) in Grove Park Properties Ltd v Royal Bankof Scotland plc [2018] EWHC 3521 (Comm) at [24]. He added:16 BB v Doha Bank Ltd [2023] EWCA Civ 253."It is wrong in principle to plead matters which do notsupport or relate to any of the remedies sought and to pleadimmaterial matters with a view to obtaining more extensivedisclosure than might otherwise be ordered: Charter UKLimited v Nationwide Building Society[2009] 1002 (TCC) at(the second) [15]. To do so is likely to complicate or confusethe fair conduct of proceedings."40. Those observations, with which I respectfully agree, were approvedin this Court by Snowden LJ in Re Kings Solutions Group Ltd [2022]2 BCLC 464. Applying them to the present case, all that the Claimantsneeded to establish to found their cause of action under Syrian lawwas that the Al Khayyat brothers transferred funds from accounts heldby them or by entities associated with them at the Bank, or throughother accounts at the Bank, to the al-Nusra Front, and that the Bankknew or ought to have known that the funds were intended for the al-Nusra Front.[47] While this Court endorses those general propositions, there is also establishedauthority that the pleading of background facts and context can be permissible. Ineach case, it will be a question of balance and judgment.[48] In its application JNL says the following aspects of the 7ASOC do not complywith the Court of Appeal judgment:(a) Red Stag claims relief in respect of the "Representations" (7ASOC at90-92, 94-96, 98-100, 102-104).(b) "Representations" is a defined term. It continues to include conductin the period prior to December 2012 (7ASOC 51-52, 54-57 andSchedules 1 and 2).(c) Red Stag says the Representations were false or misleading. It reliesin part on its interpretation of treatment requirements prior toDecember 2012 (7ASOC 36-37, 39 and Schedules 1 and 2).(d) Red Stag alleges that customers relied on the Representations whenthey recommended, sold or purchased J-Frame with the result that J-Frame obtained a market share at Red Stag's expense (7ASOC 58-61,63-75, 77-78, 82-88).(e) The claim for Representations in the period prior to December 2012underpins all of Red Stag's quantum claim.[49] Representations is defined in para 56 of the 7ASOC to include the promotionalrepresentations and identification representations which appear in paras 52 and 55respectively.[50] The introductory paragraphs of the 7ASOC up to and including para 35 can beseen as providing background and context. The first contentious allegations are atparas 36 and 37. They directly plead breaches of the relevant standards prior toDecember 2012. On the basis of the Court of Appeal's decision, Red Stag cannot seekrelief based on any representation by JNL before December 2012 regardingcompliance with the standards. Whether JNL's LVL complied with the applicablestandards before December 2012 is simply not relevant. It is not an answer to suggestJNL need not respond to the pleading. If a pleaded matter is not denied, it is treatedas admitted.17 If denied, then that would potentially lead to irrelevant and inadmissibleevidence being led: s 7(2), Evidence Act 2006. Also, any limited probative value ofsuch evidence by way of background would be outweighed by the risk it wouldneedlessly prolong the proceeding: s 8(1)(b).[51] Red Stag could achieve its purpose by amending its pleading to allege that asat December 2012 JNL's LVL did not comply with the applicable standards, becausefrom that date, JNL was incorrectly, on Red Stag's case, representing that it compliedwith the standards.[52] When read with para 51, para 52 incorporates representations prior toDecember 2012. Similarly, when para 55 is read with para 54 representations prior toDecember 2012 are apparently put in issue. However, given Mr Flanagan'sconfirmation in his written submissions that Red Stag is prevented from seeking andaccordingly it does not seek to recover losses incurred as a result of JNL's conductbetween 2007 and December 2012, the pleading can be seen as contextual. The focusof the evidence at trial will necessarily be on what representations JNL made afterDecember 2012.[53] The position can be further clarified by an amendment to para 56 removing thereference to the declarations and confirming the relevant time period as fromDecember 2012 as follows:As set out in Column C of Schedule 1, the Promotional Representations andIdentification Representations (together, the Representations, which are reliedupon prior to December 2012 only for background, including the fact of their17 High Court Rules 2016, r 5.48(3).being made, and for the purposes of seeking the declarations pleaded) werefalse because at the relevant times from December 2012:Particulars[54] The balance of the challenges to the pleading raised by Red Stag are also metby Mr Flanagan's confirmation on behalf of Red Stag that it is only pursuing claimsbased on representations after December 2012 and the consequences of thoserepresentations.Result/orders[55] The 7ASOC is to be amended in accordance with the above rulings/directions.Such amended 8ASOC is to be filed and served within 10 working days of delivery ofthis judgment and will form the basis of the applications for the further interlocutoryapplications to be heard on 9 November 2023.Costs[56] Both parties have had a measure of success on this application. In thecircumstances costs are to lie where they fall.__________________________Venning J