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25 April 2019
In Outlook Asset Management LP v Capstone Corporate Limited, the Court of Appeal clarified the procedural considerations required following the strike out of an action pursuant to Civil Procedure Rule (CPR) 26.3.
The respondent successfully applied to the BVI Commercial Court for a strike out pursuant to CPR 26.3(1)(b) on the basis that the pleadings had disclosed no reasonable prospect of success.
Several 'procedural gaffes' on the part of the appellants ensued. Four days after circulation of the draft judgment, the appellants purported to file an amended statement of claim pursuant to CPR 20.1(1). Two days later, Justice Adderley released his judgment striking out the action.
All three of the appellants' procedural grounds of appeal were rejected by the Court of Appeal, which held as follows:
To file an amended statement of claim, the appellants first needed leave from the Commercial Court judge and to have provided it in draft.The alternative would allow a claimant to circumvent a strike-out decision by filing an amended statement of claim pursuant to CPR 20.1(1), rendering the strike-out ruling otiose and frustrating the court's overriding objective.
The Court of Appeal also rejected the appellants' three other substantive grounds of appeal relating to the claim's subject matter.
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