The plaintiffs had obtained leave to serve proceedings out of the jurisdiction. They then sought to add a claim and argued that once an additional cause of action was shown to be generically within the scope of Order 11, that was an end of the matter. The court must exercise discretion as if the case were a domestic one, and may not enquire whether leave would have been granted in the circumstances of the particular case.
Held: The court disagreed. Goulding said: ‘No authority directly on the point has been cited. In principle I find the plaintiff’s proposition unacceptable. It seems to me manifestly unfair to a foreign defendant, and it would often enable a plaintiff to circumvent the court’s discretion under RSC Ord. 11 by the familiar device of throwing a sprat to catch a mackerel . . It is enough to say that the discretion to allow an amendment . . will not be exercised an injustice to the opposite party will result, and that it is in general unjust to amend a writ served under RSC Ord. 11 by adding something which the court would probably have refused to sanction under RSC Ord. 11.’
If proceedings are served out of the jurisdiction, and the plaintiff later seeks to bring in by amendment another cause of action which could also be the subject of leave to serve out, then it seems that the amendment is permissible, so long as no injustice to the opposite party will result.
Judges:
Goulding J
Citations:
[1975] 1 WLR 6, [1974] 3 All ER 442
Cited by:
Appeal from – Beck v Value Capital Ltd (No 2) CA 1976
. .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.
Jurisdiction
Updated: 15 May 2022; Ref: scu.441567